In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 20-1350

DRIFTLESS AREA LAND CONSERVANCY and

WISCONSIN WILDLIFE FEDERATION,

Plaintiffs-Appellees,

v.

MICHAEL HUEBSCH, et al.,

Defendants-Appellees.

APPEAL OF: AMERICAN TRANSMISSION COMPANY LLC, et al.,

Intervenors-Defendants-Appellants.

____________________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 19-cv-1007-wmc — William M. Conley, Judge.

____________________

SUBMITTED JULY 2, 2020 — DECIDED AUGUST 11, 2020

____________________

Before SYKES, Chief Judge, and FLAUM and ROVNER, Circuit 

Judges.

SYKES, Chief Judge. The Wisconsin Public Service Commission issued a permit authorizing the construction of a 

$500 million electricity transmission line in southwestern 
2 No. 20-1350

Wisconsin. Two environmental groups sued the Commission to invalidate the permit. The permit holders moved to 

intervene to protect their interest in the permit; without it

the power line cannot be built. The district court denied the 

motion, and the permit holders appealed.

Briefing was completed at the end of June, and we set the 

case for oral argument on September 22, 2020. The permit 

holders moved for expedited review without oral argument; 

they want an earlier ruling because the case continues 

without them in the district court. The environmental

groups responded in opposition, and the matter is ready for 

decision.

We grant the motion. The briefs and record adequately

address the single issue raised on appeal, and oral argument

would not significantly assist the court. See FED. R. APP.

P. 34(a)(2)(C). The case is submitted on the briefs, and we 

now reverse the district court. The permit holders are entitled to intervene under Rule 24(a)(2) of the Federal Rules of 

Civil Procedure. In many respects this is a paradigmatic case 

for intervention as of right.

I. Background

The plaintiffs are two Wisconsin environmental groups,

Driftless Area Land Conservancy and Wisconsin Wildlife 

Federation. The defendants are the Wisconsin Public Service 

Commission of Wisconsin and its three commissioners 

(collectively, “the Commission”). The Commission regulates 

public utilities in the state. Two of the proposed intervenors—American Transmission Company LLC and ITC 

Midwest LLC—are Wisconsin electric-power utilities. The 
No. 20-1350 3

third, Dairyland Power Cooperative, is a cooperative association that furnishes electricity to its members.

In April 2018 the two utilities and the cooperative filed 

an application with the Commission for permission to 

construct a high-voltage transmission line running from 

Madison through the southwestern part of the state and 

ending in Dubuque County, Iowa. A project of this type is 

subject to heavy regulatory oversight and requires a special 

permit from the Commission known as a “certificate of 

public convenience and necessity.” WIS. STAT. § 196.491(3). 

The two utilities each own 45.5% of the project; the cooperative owns the remaining 9%. (We refer to the utilities and the 

cooperative collectively as “the transmission companies.”) 

The estimated cost of the project is $500 million.

The permitting process requires a “class 1” contested case 

hearing. Id. § 227.01(3)(a). An exhaustive administrative 

proceeding ensued, spanning almost 18 months and drawing more than 50 intervenors. At the end of September 2019, 

the Commission approved the project and issued a permit 

authorizing the transmission companies to construct the 

proposed power line and acquire easements through eminent domain as necessary to complete construction.

In December 2019 Driftless Area Land Conservancy and 

the Wisconsin Wildlife Federation filed this lawsuit against 

the Commission seeking to invalidate the permit. Both

groups had participated in the permit proceedings as intervenors in opposition, but their views obviously did not carry 

the day. The complaint raises three constitutional claims 

under 42 U.S.C. § 1983. The first alleges that the adjudicative 

process was tainted by the appearance of bias because two of 

the three commissioners had apparent conflicts of interest, 
4 No. 20-1350

depriving the plaintiffs and their members of due process. 

The second and third claims challenge the authorization to 

use eminent domain as an unlawful taking of private property in violation of the Fifth Amendment’s takings clause.

The Commission filed a motion to dismiss in January 

2020. A week later the transmission companies moved to 

intervene, seeking intervention as of right under 

Rule 24(a)(2), or alternatively, permissive intervention under 

Rule 24(b). As required by Rule 24(c), they tendered proposed pleadings—answers and a motion to dismiss—with 

the intervention motion.

The district judge rejected intervention as of right, concluding that the transmission companies and the Commission have the same goal—dismissal of the lawsuit—and the 

Commission adequately represents that shared objective. 

The judge also declined to authorize permissive intervention, saying that adding the transmission companies as 

parties would “almost certainly and needlessly complicate 

and delay this case.” The judge denied the motion without 

prejudice and invited the transmission companies to renew 

their request if “a concrete, substantive conflict or actual 

divergence of interests should emerge” later in the litigation.

Alternatively, he invited a “standby” application to intervene—essentially a placeholder motion that could be activated if circumstances changed. See Solid Waste Agency of N.

Cook Cty. v. U.S. Army Corps of Eng’rs (SWANCC), 101 F.3d 

503, 509 (7th Cir. 1996).

Not content to rely on governmental regulators to protect

their $500 million private investment, the transmission 

companies appealed.
No. 20-1350 5

II. Discussion

A. Appellate Jurisdiction

We begin by addressing a skirmish over appellate jurisdiction.1 It will not take long. It is well established that “from 

the perspective of a disappointed prospective intervenor, the 

denial of a motion to intervene is the end of the case, so an 

order denying intervention is a final, appealable decision 

under 28 U.S.C. § 1291.” CE Design, Ltd. v. Cy’s Crab House 

N., Inc., 731 F.3d 725, 730 (7th Cir. 2013). Notwithstanding 

this rule, the plaintiffs moved to dismiss for lack of appellate 

jurisdiction, arguing that the judge’s order is not final because he left open the possibility of a new intervention 

motion if things change later in the litigation.

The possibility of a new motion if circumstances change 

does not block an immediate appeal. The contingency that 

the judge has in mind might never arise, leaving the transmission companies on the sidelines of the litigation without 

appellate review of their intervention claim. Nor does the 

incantation of the words “without prejudice” automatically 

defeat finality; what matters is that the judge addressed the 

substantive merits of the intervention motion and conclusively denied it, freezing the transmission companies out of 

the case. See United States v. City of Milwaukee, 144 F.3d 524, 

531 n.14 (7th Cir. 1998). Finally, the judge’s invitation to file a 

1 There is also a minor debate about standing. We do not understand 

why. The transmission companies hold valuable rights under a

government-issued permit authorizing them to build a major power line 

that will yield a return on their investment for many years to come. The

permit—and thus the entire power-line project—is at risk of nullification

in this litigation. A favorable decision will prevent that injury. No more 

is needed for Article III standing.
6 No. 20-1350

“standby” motion does not prevent finality. The availability 

of that optional procedure—an innovation mentioned in 

SWANCC but not specified in any procedural rule—does not 

foreclose an appeal. Nothing we said in SWANCC eliminates 

a disappointed intervenor’s right to immediately appeal an

order denying intervention.

The plaintiffs rely on City of Milwaukee, but that case actually supports rather than defeats appellate jurisdiction. 

There the district court denied an intervention motion based 

on a purely technical error: the intervenor failed to include a

proposed pleading with his intervention motion as required 

by Rule 24(c). Id. at 527. The judge denied the motion without prejudice to give the intervenor an opportunity to refile

it with the required pleading; the judge did not address the 

merits of the intervention question. Id. at 528–29. We dismissed the appeal, explaining that “a decision denying 

intervention on strictly procedural grounds is not a final judgment when the district court expressly contemplates that the 

putative intervenor subsequently will file a procedurally 

correct motion.” Id. at 530.

This case is not remotely analogous. As we specifically 

observed in City of Milwaukee, 

the circumstances would be different if a district court denied a motion to intervene on the 

ground that the putative intervenor’s interests 

were adequately protected by the existing parties but entered the denial “without prejudice”

in recognition of the fact that the circumstances 

of the case may change such that intervention 

at a later date would be appropriate. 
No. 20-1350 7

Id. at 531 n.14. That describes this case.

The judge’s order is final and appealable under § 1291. 

CE Design, 731 F.3d at 730. Appellate jurisdiction is secure.

B. Intervention as of Right

With the jurisdictional hurdle cleared, we move to the 

intervention question. The rule governing intervention as of 

right provides:

(a) Intervention of Right. On timely motion, the 

court must permit anyone to intervene who:

...

(2) claims an interest relating to the property or transaction that is the subject of the action[] and is so situated that disposing of 

the action may as a practical matter impair 

or impede the movant’s ability to protect its 

interest, unless existing parties adequately 

represent that interest.

FED. R. CIV. P. 24(a)(2) (emphasis added).

The rule is straightforward: the court must permit intervention if (1) the motion is timely; (2) the moving party has

an interest relating to the property or transaction at issue in 

the litigation; and (3) that interest may, as a practical matter, 

be impaired or impeded by disposition of the case. A proposed intervenor who satisfies these three elements is entitled to intervene unless existing parties adequately represent 

his interests.

Everyone agrees that the three basic criteria for intervention are satisfied: the intervention motion was timely; the

transmission companies hold a valuable property interest in 
8 No. 20-1350

the permit that is under attack in this litigation; and their

interest will be extinguished (not just “impaired” or “impeded”) if the plaintiffs prevail. The only disputed question is 

whether the existing defendants—the Commission and its 

members—adequately represent their interests. The district 

court answered “yes” and denied intervention as of right. 

We review that determination de novo. Wis. Educ. Ass’n

Council v. Walker (WEAC), 705 F.3d 640, 658 (7th Cir. 2013).

“The most important factor in determining adequacy of 

representation is how the interest of the absentee compares 

with the interests of the present parties.” 7C CHARLES ALAN 

WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL 

PRACTICE AND PROCEDURE § 1909 (3d ed. 2007). Our recent 

decision in Planned Parenthood of Wisconsin, Inc. v. Kaul

describes our circuit’s three-tiered methodology for evaluating adequacy of representation under Rule 24(a)(2). 942 F.3d 

793, 799 (7th Cir. 2019). “The default rule,” we explained, “is 

a liberal one.” Id. It derives from the Supreme Court’s decision in Trbovich v. United Mine Workers of America, which 

explained that “the requirement of the Rule is satisfied if the 

applicant shows that representation of his interest ‘may be’ 

inadequate; and the burden of making that showing should 

be treated as minimal.” 404 U.S. 528, 538 n.10 (1972).

However, if the interest of the absentee is identical to that 

of an existing party, or if a governmental party is charged by 

law with representing the absentee’s interest, then the 

standard for measuring adequacy of representation changes. 

In both situations—where the absentee and an existing party 

have identical interests, or the existing party is a governmental agency or official with a legal duty to represent the 

absentee’s interest—a rebuttable presumption of adequate 
No. 20-1350 9

representation arises, and the prospective intervenor must 

carry a heightened burden to establish inadequacy of representation. The degree of this heightened burden varies. 

In Planned Parenthood we explained the presumption in 

this way:

Where the prospective intervenor and the 

named party have the same goal, ... there is a 

rebuttable presumption of adequate representation that requires a showing of some conflict 

to warrant intervention. This presumption of 

adequacy becomes even stronger when the 

representative party is a governmental body 

charged by law with protecting the interests of 

the proposed intervenors; in such a situation 

the representative party is presumed to be an 

adequate representative unless there is a showing of gross negligence or bad faith.

942 F.3d at 799 (quotation marks and citation omitted).

In the district court, the plaintiffs advocated for the highest standard, which applies when a governmental party is

legally required to represent the absentee’s interests. This 

standard sets a nearly insurmountable bar: the absentee 

must show that the existing representation is grossly negligent or in bad faith. The judge declined to go that far; he was 

not convinced that the Commission is charged by law with 

protecting the transmission companies’ interests. Still, he 

applied the presumption of adequacy in its weaker form. He 

first concluded that the transmission companies and the 

Commission share the same goal: dismissal of the plaintiffs’ 

suit. Extrapolating from that conclusion, the judge applied 
10 No. 20-1350

the presumption of adequacy and required the transmission 

companies to satisfy the intermediate burden to overcome it. 

That is, he required them to show an actual, concrete conflict 

with the Commission’s representation and determined that 

they had not done so.

The transmission companies challenge the judge’s use of 

the intermediate standard. They argue instead for the lenient 

default standard, which involves no thumb on the scale and 

requires only a minimal showing that the existing party’s 

representation “may be” inadequate. Alternatively, they 

argue that the judge misapplied the intermediate standard. 

The plaintiffs, for their part, no longer advocate for the 

gross-negligence/bad-faith standard. They adopt a more 

moderate stance and simply defend the judge’s application 

of the intermediate standard.

Under a correct reading of Rule 24(a)(2) as glossed by our 

three-tiered approach, the transmission companies are

entitled to intervene. The rule calls for a contextual, casespecific analysis, and resolving questions about the adequacy of existing representation requires a discerning comparison of interests. That did not occur here.

To trigger the presumption of adequacy under the intermediate standard, it’s not enough that a defense-side intervenor “shares the same goal” as the defendant in the brute 

sense that they both want the case dismissed. The judge 

seemed to think it was, but that mode of analysis operates at 

too high a level of generality. Needless to say, a prospective 

intervenor must intervene on one side of the “v.” or the 

other and will have the same general goal as the party on 

that side. If that’s all it takes to defeat intervention, then 

intervention as of right will almost always fail. The judge’s 
No. 20-1350 11

analysis essentially boils down to this: The Commission 

wants the case dismissed. The transmission companies do 

too. Therefore, they share the same goal, and the presumption of adequate representation applies. If that’s truly how 

the presumption works, then the default standard will rarely

apply.

That’s not how the presumption works. Rule 24(a)(2) requires a more discriminating comparison of the absentee’s 

interests and the interests of existing parties. When that kind 

of contextual analysis is done here, it quickly becomes clear

that the transmission companies are entitled to participate as 

parties to this litigation to protect their private investment in 

this massive energy project. Their interests are independent 

of and different from the Commission’s in several important 

respects. To name a few: They own, finance, and will operate 

the transmission line in question, and have obligations to 

their investors in connection with its construction and 

operation. They have substantial sunk and anticipated future 

investments in the power line, and a valid expectation of a 

return on their investment pursuant to the ratemaking 

regulatory regime administered by the Federal Energy 

Regulatory Commission. See 16 U.S.C. §§ 824(d), 824d(a), 

824e(a). As public utilities, they have a legal obligation to 

maintain the power grid and provide adequate and reliable 

electricity services to the public. See WIS. STAT. § 196.03. (The 

cooperative’s obligation to furnish electricity flows to its 

members, not the general public.) And they hold the right to 

use eminent domain as needed to construct the power line.

The Commission’s interests and objectives overlap in certain respects but are importantly different. The Commission

is a regulatory body, and its obligations are to the general 
12 No. 20-1350

public, not to the transmission companies or their investors. 

The Commission can be expected to defend the procedural 

regularity of its proceedings, which is the focus of the dueprocess challenge raised in count one. The other two counts, 

however, attack the use of eminent domain, and that authority belongs to the transmission companies.

More broadly, the Commission regulates the transmission 

companies, it does not advocate for them or represent their 

interests. The transmission companies cannot be forced to 

rely entirely on their regulators to protect their investment in 

this enormous project, which they stand to lose if the plaintiffs are successful. For these reasons, their intervention 

request is not controlled by the line of cases involving

intervention motions by individual members of the public, 

citizen groups, or other units of government that hold

identical or closely aligned interests and objectives as existing governmental parties. See, e.g., Planned Parenthood, 

942 F.3d at 810 (Sykes, J., concurring); WEAC, 705 F.3d at 

658–59; SWANCC, 101 F.3d at 508.

Instead, this case falls within a line of cases involving 

permit holders that have successfully invoked Rule 24(a)(2) 

to intervene in litigation challenging their permits. See, e.g.,

Sierra Club, Inc. v. EPA, 358 F.3d 516, 517–18 (7th Cir. 2004); 

Wal-Mart Stores, Inc. v. Tex. Alcoholic Beverage Comm’n, 

834 F.3d 562, 568–69 (5th Cir. 2016); WildEarth Guardians v. 

U.S. Forest Serv., 573 F.3d 992, 996–97 (10th Cir. 2009); Sierra 

Club v. EPA, 995 F.2d 1478, 1486 (9th Cir. 1993). The plaintiffs 

cite no appellate case, and we know of none, that affirmed a

denial of intervention in similar circumstances.

Because the transmission companies’ interests and objectives are materially different than the Commission’s, the 
No. 20-1350 13

presumption of adequate representation does not apply. 

Under the lenient default standard, they need only show 

that the Commission’s representation “may be” inadequate, 

“and the burden of making that showing should be treated 

as minimal.” Trbovich, 404 U.S. at 538 n.10. They have satisfied this burden.

As we’ve noted, the Commission can be expected to

mount a vigorous defense against the plaintiffs’ attack on the 

integrity of the permitting process and the impartiality of the 

commissioners. But the power-line project itself, and the 

permit necessary to construct it, belong to the transmission 

companies, as does the authority to use eminent domain, 

which is the subject of counts two and three. The Commission may be content to move slowly in this litigation; but the 

transmission companies want to move quickly, begin using 

eminent domain as soon as possible, and otherwise keep the 

construction project on schedule. Different defenses have 

been raised. In their proposed motion to dismiss submitted 

with the intervention motion, the transmission companies 

argue that even if two commissioners had conflicts, the 

permit was lawfully issued on the vote of the remaining 

commissioner or would have issued as a matter of law 

regardless. The Commission raised neither of these arguments in its motion to dismiss. These are not mere “quibbles 

with ... litigation strategy.” WEAC, 705 F.3d at 659. Rather, 

they reflect very real differences in the interests at stake.

Accordingly, the transmission companies cannot be kept 

out of this case. The basic prerequisites for intervention 

under Rule 24(a)(2) are unquestionably satisfied, and the

transmission companies have carried their burden to show 

that the Commission’s representation may be inadequate to 
14 No. 20-1350

protect their interests. We therefore reverse the district 

court’s order and remand with instructions to permit the

transmission companies to intervene.

REVERSED AND REMANDED

WITH INSTRUCTIONS.