
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          Nos. 97-1759   97-1780               97-1760   97-1805               97-1761   97-1995               97-1762   97-1996               97-1763   97-1997               97-1773   97-2070                   PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, ET AL.,                                Plaintiffs, Appellees,                                          v.                 DOUGLAS L. PATCH, IN HIS CAPACITY AS A MEMBER OF THE                  NEW HAMPSHIRE PUBLIC UTILITIES COMMISSION, ET AL.,                                Defendants, Appellees,                                   _______________                           CABLETRON SYSTEMS, INC., ET AL.,                       Applicants for Intervention, Appellants.                              _________________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                    [Hon. Ronald R. Lagueux,* U.S. District Judge]                                              ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                                     ____________________                             and Tauro,** District Judge.                                          ______________                              _________________________               Steven  S.  Rosenthal,  with  whom  Jeffery  A.  Tomasevich,               _____________________               _______________________          Morrison &  Foerster, LLP, F. Anne Ross, F. Anne Ross, P.C., John          _________________________  ____________  __________________  ____          J.  Ryan,  Casassa  and  Ryan,  Michael  W.  Holmes,  James  R.M.          ________   __________________   ___________________   ___________          Anderson,  Peter H. Grills, David E.  Crawford, O'Neill, Grills &          ________   _______________  __________________  _________________          O'Neill, PLLP  and  Thomas I.  Arnold  III were  on  consolidated          _____________       ______________________          brief, for all appellants.               Peter  H.  Grills,  with whom  David  E.  Crawford, O'Neill,               _________________              ___________________  ________          Grills & O'Neill,  PLLP and Thomas I. Arnold  III, Assistant City          _______________________     _____________________          Solicitor, were on brief, for appellant City of Manchester.               Philip T.  McLaughlin and Martin  P. Honigberg on  brief for               _____________________     ____________________          the State of New Hampshire, amicus curiae.               Evelyn R. Robinson on brief for  Ohio Consumers' Counsel and               __________________          National Ass'n of State Consumer Advocates, amici curiae.               Dennis Lane,  with  whom Michael  E.  Tucci and  Morrison  &               ___________              __________________      ___________          Hecker, LLP were on brief, for defendants-appellees.          ___________               Allan B.  Taylor, with whom  John B. Nolan, Gary  M. Becker,               ________________             _____________  _______________          and Day, Berry & Howard were on brief, for plaintiffs-appellees.              ___________________                              _________________________                                   February 3, 1998                              _________________________          _______________           *Of the District of Rhode Island, sitting by designation.          **Of the District of Massachusetts, sitting by designation.                    SELYA, Circuit Judge.   After the New  Hampshire Public                    SELYA, Circuit Judge.                           _____________          Utilities Commission  (PUC) formulated  a plan  to inject  retail          competition  into the New Hampshire electric power market, Public          Service  Company of New  Hampshire (PSNH) filed  suit against the          PUC's  members,  seeking  to  block  inauguration  of  the  plan.          Several parties  moved to intervene  pursuant to Fed. R.  Civ. P.          24.   Not all  succeeded.  Six  disappointed would-be intervenors          appeal from  the denial of  intervention.1  Finding no  sign that          the district court abused its discretion, we affirm.          I.  BACKGROUND          I.  BACKGROUND                    Two  recent  opinions  of  the court  below  thoroughly          recount  the complicated  background of  this case.    See Public                                                                 ___ ______          Serv. Co. v. Patch, 173 F.R.D. 17, 22-24 (D.N.H. 1997) (PSNH II);          _________    _____                                      _______          Public Serv. Co. v. Patch, 962 F. Supp. 222, 225-29 (D.N.H. 1997)          ________________    _____          (PSNH I).  We draw heavily from those sources as we set the stage           ______          for consideration of the instant appeals.             A.  The Night the Lights (Almost) Went Out in New Hampshire.             A.  The Night the Lights (Almost) Went Out in New Hampshire.                 _______________________________________________________                    PSNH is New Hampshire's largest electric public utility          and  supplies approximately 70%  of the citizenry's  power needs.          In  the  early  1970s, management  predicted  that  rising energy          demands soon would  outstrip PSNH's generating capabilities.   To          ameliorate  this bleak  outlook, PSNH  undertook  to construct  a          nuclear power  plant in Seabrook,  New Hampshire.   Because state          law  prevented it from  factoring the plant's  construction costs                                        ____________________               1Three  of the would-be  intervenors also have  attempted to          take protective appeals from other orders entered by the district          court.  We deal with these additional appeals in Part V, infra.                                                                   _____                                          3          into the rate  structure until Seabrook became  operational, PSNH          relied  primarily  on  commercial  financing  to  underwrite  the          project.    Regulatory  reform  and  public  opposition  hindered          Seabrook's  progress to the  point where  the facility  became an          albatross  wrapped   snugly   around   PSNH's   corporate   neck.          Management's  forecast  that Seabrook  would be  on line  in 1979          proved much too sanguine:  construction of the plant's generating          unit  was not  completed until  1986, and  even then,  commercial          operation was infeasible.                    As delays mounted, so too  did PSNH's indebtedness.  In          1988,  PSNH  no longer  could  service  the  debt and  filed  for          bankruptcy protection in  the United States Bankruptcy  Court for          the  District of  New Hampshire.    The State  of New  Hampshire,          fearful that  its residents might find themselves consigned to an          unusually  rustic   lifestyle,  intervened   in  the   insolvency          proceedings.     The  State's  participation  was   essential  to          resolving the bankruptcy:   as a regulated  utility, PSNH's value          depends on the rates  that it can charge for electricity, and the          State sets those rates based on its calculation of the investment          that PSNH prudently devotes to the provision of  electric service          (the so-called rate base).                    In  the end, PSNH's creditors and equity holders agreed          to  place  a  $2.3  billion  value  on  the  utility     a  value          significantly   higher   than  its   pre-bankruptcy   rate  base.          Northeast Utilities (NU) then acquired all of PSNH's stock at the          capitalized price.   As part and parcel of  this transaction, the                                          4          State  executed  a  rate agreement  (the  Agreement)  designed to          permit NU  to recoup its investment  over time.  To  mitigate the          impact of  this recoupment  on ratepayers  while still  providing          meaningful financial relief  to the  rehabilitated bankrupt,  the          Agreement  preserved  PSNH's  status  as  an integrated  electric          utility  (i.e., one that engages in the generation, transmission,          and  distribution of  electric power)  and  promised annual  5.5%          electric rate increases for the next seven years.                    The  Agreement  also  made provision  for  the  gradual          recovery  of PSNH's Seabrook-related costs.  It contemplated that          NU  would take  over the  operation of  Seabrook via  a corporate          affiliate, North Atlantic Energy Corporation (NAEC), subject to a          stipulation, contained  in the  Agreement, that  the State  would          permit PSNH to buy  Seabrook-generated power from NAEC at  prices          sufficient to recover the  portion of the rate  base attributable          to Seabrook over  a reasonable interval.  Finally,  to ensure the          eventual  recovery  of  PSNH's   entire  capitalized  value,  the          Agreement allowed PSNH to designate some $400 million of the rate          base  as  "regulatory  assets."   Under  this  arrangement, these          regulatory  assets  (which  in  this  case  consisted  mostly  of          governmentally  mandated  purchase  agreements  with small  power          producers) became eligible  for amortization, albeit over  a long          number of years (thus cushioning the impact on electric rates).                    The  bankruptcy court approved the Agreement, see In re                                                                  ___ _____          Public Serv. Co., 114 B.R. 820, 843 (Bankr. D.N.H. 1990); the New          ________________          Hampshire legislature authorized  the PUC to review  it, see N.H.                                                                   ___                                          5          Rev.  Stat. Ann.    362-C (1995);  the PUC furnished  its seal of          approval,  see In  re  Northeast  Utils./Public  Serv.  Co.,  114                     ___ ____________________________________________          P.U.R.4th  385 (N.H.P.U.C. 1990); the New Hampshire Supreme Court          upheld the  PUC's action,  see Appeal of  Richards, 590  A.2d 586                                     ___ ___________________          (N.H. 1991); and PSNH emerged from bankruptcy.                              B.  The Concord Tea Party.                              B.  The Concord Tea Party.                                  _____________________                    Due  in part to  the annual rate  increases mandated by          the Agreement,  New Hampshire  consumers pay  one of  the highest          average electric  rates in  the nation.   Predictable  discontent          prompted  the state  legislature to  enact  the Electric  Utility          Restructuring Act, N.H.  Rev. Stat. Ann.   374-F:1  to F:6 (Supp.          1997),  a statute designed  to introduce retail  competition into          the  marketplace as  a means  of  reducing electric  rates.   The          statute directed the PUC to develop and put into effect  no later          than January 1,  1998, a restructuring  plan for New  Hampshire's          electric utility industry.  See id.   374-F:4.                                      ___ ___                    The  PUC  conducted  hearings   apace  and  issued  its          restructuring plan  (the Plan)  on February 28,  1997.   The Plan          provides  that the  PUC  will continue  to  set all  distribution          access  rates.  However,  electric utilities must  unbundle their          generation, transmission, and  distribution services, as  well as          open their distribution  networks   utility poles and  wires   to          all  consumers  on   a  nondiscriminatory  basis.     In  theory,          unbundling will enable customers to select from a roster of power          generators  whose rates will reflect market prices.  And although          federal  law  requires  that  transmission  tariffs   remain  the                                          6          province  of the Federal Energy Regulatory Commission (FERC), the          Plan seeks to  have the PUC exercise a modicum of control in this          area as  well by  directing utilities to  obtain PUC  approval of          proposed tariffs prior to effecting  FERC filings.  Finally,  the          Plan imports a  market domination deterrent, mandating  that each          utility choose whether  to operate as a power  generator or power          distributor, and  precluding utilities  from  continuing to  act,          directly  or  indirectly,  in both  capacities.    Utilities that          select  the distribution pathway must divest all power generation          assets by December 31, 2000,  and likewise must sever contractual          and corporate ties with utilities that offer competitive electric          service in  the same  territory.   Similar restrictions apply  to          utilities that select the generation pathway.                    Two   aspects  of  the  PUC's  edict  are  particularly          pertinent  for  purposes of  the pending  litigation.   First, in          promulgating the Plan, the PUC declined to treat the Agreement as          a contract that  constrained its actions.  Second,  a side effect          of   the  Plan's  divestiture  requirement  is  the  creation  of          "stranded costs."  This phenomenon  will occur because, under the          Plan's  competitive market paradigm,  the costs of  certain asset          investments  owned   by  an   integrated   utility  will   become          unrecoverable from ratepayers when the utility elects between the          distribution   and  generation  routes.    The  Plan  provides  a          palliative in the  form of  interim and  long-term stranded  cost          recovery  charges (SCRECHs).   The PUC will  assess each affected          utility's  stranded costs and calculate an appropriate SCRECH for                                          7          inclusion  in  the   rates  set  for  access   to  the  utility's          distribution network.   SCRECHs ordinarily will be  calculated by          means of a cost-of-service ratemaking methodology, but if the PUC          concludes  that a utility's  costs and  rates exceed  a "regional          average  rate  benchmark,"  then it  may  deny  the  utility full          recovery of its stranded costs.   At present, PSNH's rates exceed          the regional average  rate benchmark, and the PUC  has ruled that          PSNH may not  recover completely its stranded costs.   Thus, PSNH          insists  that introduction  of the benchmark  will require  it to          write  off the  $400 million  in  regulatory assets  and lead  to          another bankruptcy.2                             C.  The Empire Strikes Back.                             C.  The Empire Strikes Back.                                 _______________________                    On  March 3,  1997, PSNH,  NU,  and NAEC  (collectively          "PSNH" or "the plaintiffs") filed suit in New Hampshire's federal          district court  against the  members of the  PUC.   Their amended          complaint limns  a litany  of federal preemption  claims.   These          include a claim  premised on section 201(b) of  the Federal Power          Act, 16 U.S.C.    824(b) (1994); a claim premised on sections 205          and  206 of the  same statute, 16  U.S.C.   824(d),  (e); a claim          premised on the filed rate doctrine, see, e.g., Boston Edison Co.                                               ___  ____  _________________          v. FERC, 856 F.2d 361, 369 (1st Cir. 1988) (discussing doctrine);             ____                                        ____________________               2On April 7, 1997, the PUC stayed implementation of portions          of the Plan  to rehear whether the PSNH will in fact be forced to          write  off  the regulatory  assets.   The  PUC at  the  same time          announced its intention  to revisit the  question of whether  the          Plan repudiates an enforceable obligation of the State (i.e., the          Agreement).    These  developments  clearly   bear  upon  certain          contested  issues  in  the underlying  case  (e.g.,  ripeness and          abstention), but they do not possess great significance vis- -vis          the question of intervention.                                          8          a claim premised on section  201 of the Public Utility Regulatory          Policies Act of 1978, Pub. L. No. 95-617, 92 Stat. 3117 (codified          as  amended in  scattered sections of  15 and  16 U.S.C.);  and a          claim  premised on the  Public Utility Holding  Companies Act, 15          U.S.C.     79  to  79z-6  (1994).   The  complaint also  includes          several constitutional claims, including  three separate theories          under which the PUC's orders allegedly work an unlawful taking; a          Commerce Clause  claim to the  effect that the PUC  is attempting          impermissibly to regulate interstate commerce; a Contracts Clause          claim  to the  effect that  the Plan  unlawfully compromises  the          Agreement;   and  a  First  Amendment  claim  that  defies  ready          comprehension.   Lastly, the  complaint contains claims  that the          Plan transgresses an  injunction entered by the  bankruptcy court          in  1990 and  simultaneously violates  42 U.S.C.    1983 (1994).3          The  complaint prays,  inter  alia,  for  an  injunction  against                                 _____  ____          implementation of  the Plan  and a declaration  that the  Plan is          unlawful.                    On  March  10,  1997,  the  district  court  entered  a          temporary  restraining order (TRO)  that enjoined  the defendants          from  enforcing those  sections  of the  Plan  that purported  to          restrict  PSNH's ability  to recover  fully  its stranded  costs.          Four days  later, the  court heard argument  on a  gallimaufry of                                        ____________________               3In the  introductory portions  of their  amended complaint,          the plaintiffs accuse the PUC of affording them insufficient time          to make their case administratively, failing to enforce discovery          rules, and holding  hearings that were a "mere  pretense."  These          allegations  sound like  a prelude  to a  procedural due  process          challenge, yet the plaintiffs never make such a claim.                                          9          intervention motions  and took  them under  advisement pending  a          decision  on ripeness and abstention (issues which, if determined          adversely  to the  plaintiffs, would  render intervention  moot).          The court scheduled  a hearing on these  issues for March  20 and          granted  the would-be  intervenors leave  to  file amicus  curiae          briefs.  On the appointed date, Judge Lagueux heard arguments and          reserved decision.  The  next day, he amended  the TRO to  enjoin          portions of  the Plan that,  in the plaintiffs'  view, repudiated          obligations created by the Agreement.   He then continued the TRO          "pending further order of the court."                    In due  course, Judge Lagueux  ruled that the  case not          only   was  ripe,  but   also  an  inappropriate   candidate  for          abstention.   See PSNH  I, 962  F. Supp.  at 229-44.   The  judge                        ___ _______          simultaneously  signaled his  intent to  address  the motions  to          intervene without further delay, noted that  the TRO would remain          in effect pending further order,  and directed the clerk of court          to schedule a  preliminary injunction hearing in June.4   See id.                                                                    ___ ___          at 244.                    On  June  12,  1997,  the  district  court  denied  the                                        ____________________               4On  May 13,  the parties  to  the case  (not including  the          applicants for intervention)  agreed to mediation and  stipulated          to  a stay of proceedings, thereby  obviating the need for a June          preliminary  injunction hearing.   By its  terms, the  stay would          expire coincident with the end of the mediation period, which was          originally  contemplated to  last through  the end  of June.   As          directed  by  the  May 13  stipulation  and  order, the  mediator          periodically  reported on the parties' progress.   Based on these          reports Judge Lagueux twice extended the period.  On September 3,          1997, the mediator reported that  efforts had failed and the stay          since  has been  dissolved.   The  would-be  intervenors did  not          participate in the mediation process.                                          10          appellants' motions to intervene.  See PSNH II, 173 F.R.D. at 26.                                             ___ _______          The  court held  in  substance that  the appellants'  interest in          securing  lower electric  rates was  too  generalized to  justify          intervention  as of  right;  that  the  appellants  retained  the          ability to protect  their interests in the  Plan's implementation          regardless of whether  they were  allowed to  participate in  the          court case;  and that,  in all  events, the  presence of the  PUC          members  as  defendants  ensured adequate  representation  of the          appellants' interests  in respect  to  the issues  raised by  the          complaint.   See id. at 26-27.  The  court did permit three other                       ___ ___          parties, Granite State Electric Company,  Unitil Corporation, and          the  New  Hampshire  Electric Cooperative,  to  intervene  on the          plaintiffs' side  of the  case.   See id.  at 28.   One  would-be                                            ___ ___          intervenor,  the City  of Manchester, moved  for reconsideration,          but to no avail.          II.  THE CAST OF CHARACTERS          II.  THE CAST OF CHARACTERS                    There are  six intervention-related appeals  before us.          In an  effort to put  matters into more workable  perspective, we          profile the identity and interests of the six appellants.                    1.   Cabletron  Systems,  Inc.  (Cabletron)  is  a  New                    1.          Hampshire corporation  with its  principal place  of business  in          Rochester,  New Hampshire.   It  is  one of  the largest  private          electricity consumers in New Hampshire.                    2.  The Office of the Consumer Advocate of the State of                    2.          New Hampshire (OCA)  is a state agency statutorily  authorized to          "petition  for, initiate, appear  or intervene in  any proceeding                                          11          concerning rates,  charges, tariffs, and consumer services before          any board, commission, agency, court, or regulatory body in which          the interests of  residential utility consumers are  involved and          to represent the interest of such residential utility consumers."          N.H. Rev. Stat. Ann.   363.28(II) (1995).                    3.  The City  of Manchester is New  Hampshire's largest                    3.          municipality and serves as the administrator of an electric power          aggregation  program  that  procures  electricity  for  some  260          municipal, residential, and commercial accounts.                    4.  The Campaign for Ratepayers' Rights (CRR) is a non-                    4.          profit  citizens' group composed of several hundred New Hampshire          residential and commercial electricity consumers.                    5.  The  Retail Merchants Association of  New Hampshire                    5.          (RMA)  is  a   non-profit  corporation  based  in   Concord,  New          Hampshire.     RMA  boasts  a  membership  of  approximately  700          businesses located in the  Concord area.  It acts as  an electric          load  aggregator.     Under  its  aegis,  members   may  purchase          electricity at discounted rates.                    6.  Community  Action Programs of New  Hampshire (CAPS)                    6.          is an alliance of six non-profit organizations.   Its constituent          organizations provide  assistance programs  of  various kinds  to          low-income families in New Hampshire.          III.  THE LEGAL LANDSCAPE          III.  THE LEGAL LANDSCAPE                    The   six  principal  appeals  stand  or  fall  on  the                                          12          appellants'   entitlement  to  intervene  as  of  right.5    That          entitlement depends,  in the first  instance, on Fed. R.  Civ. P.          24(a), which provides in relevant part:                    Upon  timely  application   anyone  shall  be                    permitted to  intervene in an action:   . . .                    (2)  when the  applicant  claims an  interest                    relating to the property or transaction which                    is  the   subject  of  the   action  and  the                    applicant is so situated that the disposition                    of the  action  may  as  a  practical  matter                    impair or impede  the applicant's ability  to                    protect that interest, unless the applicant's                    interest   is   adequately   represented   by                    existing parties.                    A party  that desires  to intervene  in a  civil action          under Rule 24(a)(2) must satisfy  four conjunctive prerequisites:          (1) a  timely application  for intervention;  (2) a  demonstrated          interest relating to the property  or transaction that forms  the          basis of the ongoing action;  (3) a satisfactory showing that the          disposition  of  the  action  threatens  to  create  a  practical          impairment or impediment to its ability to protect that interest;          and (4) a satisfactory showing that existing parties inadequately          represent  its  interest.     See  Conservation  Law   Found.  v.                                        ___  __________________________          Mosbacher,  966 F.2d 39,  41 (1st Cir.  1992).   An applicant for          _________          intervention  as of right must run the table and fulfill all four          of these preconditions.   The failure to satisfy any  one of them          dooms  intervention.  See  Travelers Indem. Co.  v. Dingwell, 884                                ___  ____________________     ________          F.2d 629, 637 (1st Cir. 1989).                                        ____________________               5In the court  below, the appellants also  sought permissive          intervention under Fed. R. Civ. P. 24(b).  Judge Lagueux rejected          those  initiatives.   See  PSNH  II,  173  F.R.D.  at  29.    The                                ___  ________          appellants have not pressed the point in this venue.                                          13                    The application of this framework to the divers factual          circumstances  of individual  cases requires  a holistic,  rather          than reductionist, approach.  See International Paper Co. v. Town                                        ___ _______________________    ____          of  Jay,  887  F.2d  338,  344 (1st  Cir.  1989).    The inherent          _______          imprecision of Rule 24(a)(2)'s individual elements  dictates that          they  "be  read  not discretely,  but  together,"  and always  in          keeping  with a  commonsense  view  of  the  overall  litigation.          United States  v. Hooker Chems.  & Plastics Corp., 749  F.2d 968,          _____________     _______________________________          983 (2d Cir.  1984).  Because small differences  in fact patterns          can significantly affect  the outcome, the very nature  of a Rule          24(a)(2)  inquiry limits the  utility of comparisons  between and          among published opinions.   See Security Ins. Co. v. Schipporeit,                                      ___ _________________    ____________          Inc., 69 F.3d 1377, 1381 (7th Cir. 1995).          ____                    The   district   court's  denial   of   a  motion   for          intervention as of  right lays  the foundation  for an  immediate          appeal.  See  Flynn v.  Hubbard, 782  F.2d 1084,  1086 (1st  Cir.                   ___  _____     _______          1986).   Although  we review  the  district court's  intervention          decisions for abuse  of discretion, see International  Paper, 887                                              ___ ____________________          F.2d  at 344,  that discretion  is more  circumscribed when  Rule          24(a)  is in  play,  see Stringfellow  v. Concerned  Neighbors in                               ___ ____________     _______________________          Action,  480 U.S.  370, 383  (1987) (noting  that the  nisi prius          ______          court  has  less  discretion  in its  disposition  of  motions to          intervene as of right).  We  will reverse the denial of a  motion          to intervene as of right "if the court fails to apply the general          standard provided  by the text of Rule  24(a)(2), or if the court          reaches a decision that so fails to comport with that standard as                                          14          to indicate  an abuse of  discretion."  International  Paper, 887                                                  ____________________          F.2d at 344.                    In  the case  at hand, we  can narrow  the lens  of our          inquiry somewhat.   For  one thing, none  of the  appellants have          argued that  the  district court  misapprehended Rule  24(a)(2)'s          analytic framework  or failed  to appreciate  the rule's  general          standard.    For   another  thing,  the  appellees   concede  the          timeliness  of  the  intervention motions.    Thus,  our analysis          focuses exclusively  on whether  the court  properly applied  the          other  three elements  of  the test:    sufficiency of  interest;          likelihood of impairment; and adequacy of representation.6          IV.  ANALYSIS          IV.  ANALYSIS                    We first address the common arguments for  intervention          pressed  by Cabletron,  CRR, RMA,  and  CAPS (collectively,  "the          Grouped  Appellants").    We  then  turn  to  the  differentiated          rationales  for  intervention offered  by  OCA  and  the City  of          Manchester.                             A.  The Grouped Appellants.                             A.  The Grouped Appellants.                                 ______________________                                        ____________________               6The plaintiffs  argue that  we should  affirm the  district          court's  denial of the  motions to intervene  filed by Cabletron,          RMA, CAPS,  and OCA  because each of  those appellants  failed to          accompany its motion with "a  pleading setting forth the claim or          defense  for which  intervention is  sought."   Fed.  R. Civ.  P.          24(c).  We  agree that these parties were  derelict in their Rule          24(c)  duties, and that such dereliction ordinarily would warrant          dismissal of their  motions.  See Rhode Island  Fed'n of Teachers                                        ___ _______________________________          v.  Norberg, 630  F.2d  850, 854-55  (1st Cir.  1980).   In  this              _______          instance, however,  the district  court elected  to forgive  this          oversight.  See PSNH II, 173 F.R.D. at 24 n.2.  Because we affirm                      ___ _______          the  lower court's  denial of  the motions  to intervene  on more          substantive  grounds,   we  see   no  reason   to  revisit   that          determination.                                          15                    Although   there   are   modest  differences   in   the          particulars  of  their  respective  situations,  a  common  theme          pervades  the  arguments of  all  the Grouped  Appellants:   each          strives to justify intervention as a matter of right by reference          to  the  same  two  interests.    First,  they  assert  that  the          plaintiffs' action asks  the district  court to  strike down  the          Plan, and that such relief, if granted, would sunder their shared          interest in obtaining lower electric  rates.  Second, they assert          that their  prior (and  anticipated) participation  in the  PUC's          administrative proceedings itself  furnishes an independent basis          for intervention.  We find both assertions wanting.                    To begin with, the assertion of an economic interest is          procedurally  vulnerable.     Although  the   Grouped  Appellants          vigorously pressed this line  of argument in the district  court,          they   devote   only   cursory  attention   to   it   on  appeal.          Consequently, it is not preserved for appellate review.  See Ryan                                                                   ___ ____          v. Royal Ins. Co., 916 F.2d 731, 734 (1st Cir. 1990).             ______________                    Even  were  the  asseveration  preserved, it  would  be          unavailing.   While the  type of  interest sufficient  to sustain          intervention  as  of  right  is  not  amenable  to   precise  and          authoritative  definition, a putative  intervenor must show  at a          bare  minimum that it has "a significantly protectable interest,"          Donaldson v.  United States,  400 U.S. 517,  531 (1971),  that is          _________     _____________          "direct,  not contingent,"  Travelers Indem.,  884  F.2d at  638.                                      ________________          Though  these  contours   are  relatively   broad,  the   Grouped          Appellants'  interest in  the lower  electric  rates expected  to                                          16          result from restructuring falls well outside the pale.                    Potential economic harm  to a would-be intervenor  is a          factor  that  warrants  serious  consideration  in  the  interest          inquiry.  See  Conservation Law Found., 966  F.2d at 43;  but cf.                    ___  _______________________                    ___ ___          New Orleans Pub.  Serv., Inc. v.  United Gas  Pipe Line Co.,  732          _____________________________     _________________________          F.2d 452, 466 (5th Cir. 1984) (en banc) (holding that an economic          interest  alone is  insufficient predicate  for  a Rule  24(a)(2)          intervention).   It is settled beyond peradventure, however, that          an  undifferentiated, generalized interest  in the outcome  of an          ongoing action  is too  porous a foundation  on which  to premise          intervention  as of right.  See  New Orleans Pub. Serv., 732 F.2d                                      ___  ______________________          at 466;  Athens Lumber Co.  v. Federal Election Comm'n,  690 F.2d                   _________________     _______________________          1364, 1366  (11th Cir.  1982); United States  v. American  Tel. &                                         _____________     ________________          Tel. Co.,  642 F.2d 1285, 1292 (D.C.  Cir. 1980).  That principle          ________          is  dispositive  here  for  the  Grouped  Appellants'  theory  of          economic interest  operates at  too high a  level of  generality.          After all, every electricity consumer  in New Hampshire and every          person who does business with any electricity consumer yearns for          lower electric rates.                    To cinch  matters, the Grouped  Appellants' interest in          obtaining  lower electric  rates also  has  an overly  contingent          quality.  This is not a case in which ongoing litigation directly          threatens an economic right  or benefit presently enjoyed by  any          would-be  intervenor.   See,  e.g., City  of Stillwell  v. Ozarks                                  ___   ____  __________________     ______          Rural Elec.  Coop., 79 F.3d 1038, 1042 (10th  Cir. 1996).  It is,          __________________          rather, a  case in  which these  would-be intervenors  root their                                          17          professed economic interest in an as yet unrealized expectancy of          lower  electric rates.   As  the  district court  perspicaciously          observed,  numerous market  variables will  impact New  Hampshire          electric  rates even  after the  PUC  implements a  restructuring          plan.  See PSNH II, 173 F.R.D. at 26.  Whether the interaction of                 ___ _______          these  variables actually will  produce lower rates  is anybody's          guess,  thus demonstrating the  fatally contingent nature  of the          asserted economic  interest.  See  Travelers Indem., 884  F.2d at                                        ___  ________________          638-39.                    The  Grouped   Appellants  also  claim   a  protectable          interest within the purview of Rule 24(a)(2) arising out of their          prior participation, and their anticipated opportunity for future          participation,  in the  PUC's  administrative proceedings.    All          profess to  fear that the plaintiffs' suit  will lay waste to the          efforts that they  expended (culminating in  the Plan), and  that          this threat entitles them to intervention.                    We  do not  dismiss  this claim  lightly.   In  certain          circumstances,  an  administrative-proceeding interest  may  well          form a sufficient predicate for  intervention as of right.  Since          this clearly is not  true across the board, we  must evaluate the          asserted  administrative-proceeding  interest  in  light  of  the          specific  claims embodied  in  the  lawsuit  pending  before  the          district court    and we must do so in keeping with the pragmatic          cast  of  Rule  24(a)(2).    Furthermore, we  must  conduct  this          assessment  with an awareness  that Rule 24(a)(2)'s  third tine            whether  disposition of  the  extant action  may  as a  practical                                          18          matter  impair or  impede the  applicant's ability  to protect  a          cognizable interest   often influences resolution of the interest          question.  See Conservation Law Found., 966 F.2d at 42.                     ___ _______________________                    The plaintiffs' complaint does not frontally attack the          process through which the PUC  arrived at the Plan,7 but, rather,          pleads causes of  action that will require the  district court to          measure  the  submitted   Plan  against  federal   statutory  and          constitutional  benchmarks.      Hence,   adjudication   of   the          plaintiffs'  claims  will not  place  the district  court  in the          position  of having  to rebalance  competing  policy views  anent          electric utility industry  restructuring or  otherwise to  co-opt          the            administrativeproceedingsinwhichthewould-beintervenorsappeared.                    The  Grouped Appellants  resist  this conclusion.    In          their estimation,  the  plaintiffs'  challenges  do  not  involve          "pristine" questions  of federal  law, and  they express  concern          that the district court  will be forced to immerse itself  in the          "nitty gritty" of  ratemaking.  We agree that  the district court          will  have  to  understand  the  Plan in  order  to  resolve  the          plaintiffs'  challenges, but  we are  confident that  the PUC  is          fully  capable of  explicating  the interstices  of  the Plan  to          facilitate  this review.    More  to the  point,  we  deem it  of          decretory  significance  that  the types  of  viewpoint-balancing          issues that merited the inclusion  of a wide array of  parties in                                        ____________________               7Although   paragraph  42   of   PSNH's  amended   complaint          attributes arbitrary and capricious  procedural maneuvers to  the          PUC, the plaintiffs have not based any of their federal claims on          these ostensible procedural defects.                                          19          the  administrative proceedings  are not  present  in this  civil          action, and we therefore are  hard-pressed to see how the present          litigation  will  impair  or  impede  the  would-be  intervenors'          legitimate interests.                    The  Grouped Appellants' reliance  on United  States v.                                                          ______________          South Fla. Water Mgmt. Dist., 922 F.2d 704 (11th Cir. 1991),  for          ____________________________          the  proposition that  participation in the  PUC's administrative          proceedings ipso  facto justifies  intervention as  of right,  is                      ____  _____          misplaced.  There,  the federal government brought  suit alleging          that a water  management district's irrigation and  flood control          policies violated a state environmental statute.  See id. at 707.                                                            ___ ___          The United  States asked the district court, inter alia, to set a                                                       _____ ____          maximum allowable  concentration of nitrogen  and phosphorous  in          farm  water  runoff.   See  id.   The  court denied  various farm                                 ___  ___          groups'  motions  for intervention  as  of right.    The Eleventh          Circuit reversed.  It found  that the Florida statute granted the          farm  groups  a  statutory  right to  participate  in  the  water          district's  administrative  implementation of  runoff  standards.          Because   the  federal   litigation   essentially  bypassed   the          administrative framework, denial of intervention would  eliminate          the farm groups' role in the  decisionmaking process.  See id. at                                                                 ___ ___          708.                    Such is  not the case  here.  The  would-be intervenors          heretofore   have  taken  full   advantage  of  their   right  to          participate in  the  PUC's proceedings,  and  their role  in  any          future administrative decisionmaking process is not  in jeopardy.                                          20          On  the one  hand, if  the plaintiffs  lose,  then the  Plan that          emerged from the administrative  proceedings probably will remain          intact   unless the PUC,  in the course of further administrative          proceedings (in which  the applicants for intervention  will have          an opportunity to participate), modifies  it.  On the other hand,          if the plaintiffs  prevail, then the Plan likely  will fall   yet          the district court will  not replace it with  another of its  own          creation.   Rather, the  PUC will be  left to  devise a successor          plan, and  the Grouped  Appellants  will be  able to  participate          fully  in  any such  efforts.    In  either event,  the  would-be          intervenors'    administrative-proceeding     interest    remains          unsullied.8                    The Grouped Appellants also advance the closely related          claim that  the TRO  issued by the  district court  impairs their          right  to  participate  in   ongoing  or  future   administrative          proceedings before the  PUC.  This claim requires  scant comment.          It suffices  to say that  the present litigation has  not impeded          this entitlement in any real sense.  To the extent that the lower          court  has halted administrative  proceedings, its orders  are of          universal application:   it did  not bar  the Grouped  Appellants          selectively  from  participating   in  any  ongoing   proceeding.                                        ____________________               8The  Grouped Appellants  also cite  In re Sierra  Club, 945                                                    __________________          F.2d  776, 779  (4th Cir.  1991)  (dictum), in  support of  their          contention  that  participation in  an  administrative proceeding          creates  an  interest  that  is  per  se  sufficient  to  warrant          intervention as of right in  any litigation related to the result          of  those proceedings.   To  the  extent that  the court's  broad          language  can be  read as  stating such  a rule,  we respectfully          decline to follow it.                                          21          Indeed, the PUC itself has  suspended reconsideration of the Plan          pending resolution  of this case.   While the  Grouped Appellants          undoubtedly would  prefer that the Plan's  implementation proceed          immediately,  the  current  stalemate  does not  prejudice  their          ability to  participate prospectively  in resumed  administrative          proceedings once the litigatory logjam clears.                    Any  residual  doubt that  might  linger regarding  the          Grouped Appellants' right  to intervene is assuaged  at the final          step  of the Rule 24(a)(2)  inquiry.  We  agree with the district          court that the Grouped Appellants  simply have not shown that the          defendant commissioners inadequately represent their interests in          upholding the Plan.                    To be  sure, an  applicant for  intervention need  only          make  a minimal  showing  that  the  representation  afforded  by          existing parties likely will  prove inadequate.  See  Trbovich v.                                                           ___  ________          United Mine Workers, 404 U.S. 528, 538 n.10 (1972).  Nonetheless,          ___________________          the adequacy of interest requirement  is more than a paper tiger.          A party that  seeks to  intervene as of  right must produce  some          tangible basis to  support a claim of purported  inadequacy.  See                                                                        ___          Moosehead Sanitary Dist. v. S. G. Phillips Corp., 610 F.2d 49, 54          ________________________    ____________________          (1st Cir. 1979).  Moreover, the burden of persuasion is ratcheted          upward in this case because  the commissioners are defending  the          Plan  in   their  capacity   as  members   of  a   representative          governmental body.  Given this fact,  the Grouped Appellants must          rebut a presumption  that the commissioners adequately  represent          their interests.  See Mausolf v. Babbitt, 85 F.3d 1295, 1303 (8th                            ___ _______    _______                                          22          Cir.  1996).    This  rebuttal  requires  "a  strong  affirmative          showing"  that  the  agency  (or  its  members)  is   not  fairly          representing  the   applicants'  interests.    Hooker   Chems.  &                                                         __________________          Plastics, 749 F.2d at 985.          ________                    The Grouped Appellants attempt to roll this presumption          on  its  side.     They maintain  that  the PUC's  status  as the          principal  protector of the general public interest precludes its          effective representation of their particularized interests.  See,                                                                       ___          e.g., Mille Lacs Band of  Chippewa Indians v. Minnesota, 989 F.2d          ____  ____________________________________    _________          994, 1001  (8th Cir. 1993)  (finding the presumption  of adequate          representation overcome where a suit against the state to enforce          an   Indian  treaty  implicated   the  intervenors'  interest  in          preserving fish and  game stock on their private lands).   On the          facts of the case at bar, however, this resupinate reasoning does          not withstand scrutiny:   in respect  to the plaintiffs'  claims,          the PUC's  interests  are perfectly  aligned  with those  of  the          Grouped Appellants.  We explain briefly.                    Although  the   motives  that   drive  any   individual          appellant's support for the Plan  may diverge slightly from those          of  its fellow  appellants and  also from those  of the  PUC, all          march  in  legal lockstep  when  defending the  Plan  against the          plaintiffs'  federal  statutory  and  constitutional  challenges.          None of  the Grouped Appellants has propounded any legal argument          that the  PUC members are  unable or  unwilling to make,  or that          subverts  the  PUC's  institutional  goals.    This  symmetry  of          interest among the  Grouped Appellants and the  PUC commissioners                                          23          ensures  adequate representation.   See  American  Lung Ass'n  v.                                              ___  ____________________          Reilly, 962  F.2d 258, 261-62  (2d Cir.  1992); Washington  Elec.          ______                                          _________________          Coop. v. Massachusetts Mun. Wholesale  Elec. Co., 922 F.2d 92, 98          _____    _______________________________________          (2d Cir. 1990); see generally United Nuclear Corp. v. Cannon, 696                          ___ _________ ____________________    ______          F.2d  141, 144  (1st Cir.  1982) (discussing  the factors  that a          federal court must consider in the adequacy of interest inquiry).                    If that were not enough   and we firmly believe that it          is    we note  that the PUC  members have  launched a full-scale,          uncompromising defense of  their Plan.   We think the  likelihood          that   the  PUC  will  capitulate  cravenly  to  the  plaintiffs'          onslaught is  extremely remote.   This  circumstance, in  itself,          weighs  heavily in favor of  denying mandatory intervention.  See                                                                        ___          Washington Elec. Coop., 922 F.2d at 98; Natural Resources Defense          ______________________                  _________________________          Council, Inc. v. New York State Dep't of Envtl. Conservation, 834          _____________    ___________________________________________          F.2d 60, 62 (2d Cir. 1987); cf. Conservation Law Found., 966 F.2d                                      ___ _______________________          at  44 (finding  that  the  Secretary  of  Commerce  inadequately          represented the more parochial  interests of putative intervenors          because he  agreed, with minimal opposition, to  a consent decree          drafted by the plaintiffs).                    Finally,  the  Grouped  Appellants  maintain  that  the          courts must  accept at  face value the  PUC's declaration  of its          inability to represent their interests, no questions asked.  This          is sheer  persiflage.  Here,  as in many other  contexts, actions          speak  louder  than  words.    In all  events,  neither  the  PUC          commissioners'  support of and consent to the Grouped Appellants'          desire to  intervene,  nor the  commissioners' insinuations  that                                          24          they, alone, are  not up to the  task of defending the  Plan, can          strip a federal court of the right and power   indeed, the duty            to  make  an   independent  determination  as  to   whether  Rule          24(a)(2)'s prerequisites are  met.  See International  Paper, 887                                              ___ ____________________          F.2d at 340-41; Wade  v. Goldschmidt, 673 F.2d 182, 184  n.3 (7th                          ____     ___________          Cir. 1982).                                       B.  OCA.                                       B.  OCA.                                           ___                    We turn next to OCA's  quest for intervention.  For the          most part, its arguments parallel those championed by the Grouped          Appellants   the  six would-be intervenors did,  after all, elect          to file a consolidated brief   and we reject them for the reasons          already stated.   We  write separately,  however, to address  one          idiosyncratic feature.                    OCA and  two amici, the Ohio Consumers' Counsel and the          National Association of State Utility Consumer Advocates, contend          that the district  court should have allowed OCA  to intervene as          of  right because  a New  Hampshire  statute endows  it with  the          authority  to  represent residential  utility  consumers  "in any          proceeding  concerning  rates,  charges,  tariffs,  and  consumer          services  before   any  board,  commission,   agency,  court,  or          regulatory  body."   N.H. Rev.  Stat.  Ann.    363:28(II).   This          legislative    directive   requiring    OCA    to   devote    its          representational  zeal  entirely  to the  cause  of  the consumer          contrasts with the  PUC's statutory  mandate to  "be the  arbiter          between  the  interests of  the  customer  and  the interests  of          regulated utilities."  Id.   363:17a.  Focusing singlemindedly on                                 ___                                          25          these disparate  statutory missions, OCA  and its amici  take the          position that the PUC cannot adequately represent OCA's interests          in this case.                    A  state statute can inform the Rule 24(a)(2) calculus,          but it cannot displace the requirement that a would-be intervenor          satisfy each of the  rule's prerequisites.  See  Washington Elec.                                                      ___  ________________          Coop., 922  F.2d at 96-98.   Whatever discrepancies exist  in the          _____          enabling statutes  of OCA  and the  PUC, respectively,  a federal          court must  assess adequacy  of  representation in  light of  the          issues at  stake in the  particular litigation.  For  the reasons          previously  discussed,  the  differences  in  the  two  agencies'          statutory missions are without consequence here; like the Grouped          Appellants, OCA can point neither to any legal argument favorable          to it  that the commissioners are unwilling  or unable to make in          defense of  the Plan,  nor to  any legal  position  taken by  the          commissioners that  compromises OCA's  interests in  any material          way.  In short, there simply is no divergence of interest between          the two bodies in respect to the causes of action pleaded in this          litigation.9                             C.  The City of Manchester.                             C.  The City of Manchester.                                 ______________________                    Like  the other five appellants, the City of Manchester                                        ____________________               9Our contextualized holding should ease the amici's  concern          that  failure  to  allow   OCA  to  intervene  will   impair  the          effectiveness of similar consumer advocacy organizations in other          litigation.  If, for example,  PSNH had included in its complaint          claims that would necessitate  a viewpoint-balancing analysis  in          which consumer concerns  played a significant role,  we would see          OCA's appeal in a vastly different light.                                          26          advances arguments grounded both in an asserted economic interest          and  an  asserted  administrative-proceeding interest.    To  the          extent  that these arguments replicate  those made by the Grouped          Appellants,   we   reject  them   for   the   reasons  previously          articulated.   Still, the city's position is different in certain          respects.                    Manchester  administers  a   municipal  electric  power          aggregation  program under  which  it  procures  electricity  for          several hundred municipal, residential,  and commercial accounts.          The number  of accounts that  it represents imbues the  city with          sufficient market power  to acquire  substantial rate  discounts.          Manchester supports the  Plan because it believes  that increased          competition in the electric power  market will allow it to secure          even lower  electric rates for the subscribers to the aggregation          program.    Manchester posits  that this  special interest  as an          aggregator justifies intervention as of right.                    Notwithstanding this twist, the  district court did not          believe that Manchester's interest differed  appreciably from the          generalized  economic  interest  asserted by  each  of  the other          appellants.  See PSNH II, 173 F.R.D. at 23, 25-26.  We discern no                       ___ _______          abuse  of discretion  in  that ruling.   By  like  token, we  are          unmoved  by the city's  insistence that, as  administrator of the          aggregation program, its interest  is not merely in lower  rates,          but  also in  fostering  an  electric power  market  open to  the          greatest possible number of competitors.  This recharacterization          is more froth than brew.   When all is said and done,  Manchester                                          27          seeks to  promote a competitive  market because it  surmises that          such a development will have a salutary effect on electric rates.                    Manchester also attempts to distinguish its position on          the ground that, due to the aggregation program, it is registered          with the PUC as a supplier of electric power.  But this brings us          full circle.  Manchester does  not assert any interest that stems          from its role as a supplier other than a desire to purchase power          at the lowest possible rates and to pass the resultant savings to          its  subscribers.   Hence, the claimed  distinction fails  to set          Manchester apart from the other appellants in any material way.                    Manchester has one remaining bullet in its intervention          gun,  but it too is a blank.   The city notes that PSNH is one of          its  largest employers and  taxpayers and, consequently,  that it          has  a  vital interest  in  PSNH's  ability  to remain  a  viable          enterprise after  market restructuring.   While  we have  serious          doubts  that  Manchester's  paternalistic impulses  satisfy  Rule          24(a)(2)'s interest requirement  at all, we need  not decide that          issue for two reasons.   First, and most  obviously, PSNH is  the          party with  the singularly  greatest interest  in preserving  its          economic survival and  can adequately represent that  interest in          this case.  Second, Manchester's positions on the issues at stake          in  this  litigation  align  perfectly  with  those  of  the  PUC          commissioners.                    Manchester attempts  to defuse  the suggestion  that it          stands  shoulder-to-shoulder   with  the  defendants   by  loudly          proclaiming its disagreement with the PUC's method of calculating                                          28          PSNH's  stranded cost  recovery allowance.   This  is a  very red          herring.  In the context of the lawsuit, the stranded costs issue          mainly affects  PSNH's takings  claims.   But Manchester, in  its          proffered answer to PSNH's complaint,  see Fed. R. Civ. P. 24(c),                                                 ___          denies that  any of  the PUC's actions  amount to  a confiscatory          taking.  At  any rate, PSNH itself adequately  will represent any          interest  that  the  city  may  have  in  contesting  the  SCRECH          methodology embodied in the Plan.                    Refined  to  bare  essence,  Manchester's campaign  for          intervention as  of right  reduces to its  promise that  it "will          offer a different angle on  the legal questions in this lawsuit."          This  campaign promise, unamplified by any specifics, cannot bear          the  weight of a  claim that adequate  representation is lacking.          See Moosehead Sanitary Dist., 610 F.2d at 54.          ___ ________________________          V.  FLOTSAM AND JETSAM          V.  FLOTSAM AND JETSAM                    Cabletron,  RMA, and the  City of Manchester  also have          attempted  to  appeal  from  orders of  the  district  court  not          directly related  to intervention.  Because we  affirm the denial          of their  motions to intervene,  they lack standing to  press any          other  issues before  this court.    See SEC  v. Certain  Unknown                                               ___ ___     ________________          Purchasers of the Common Stock of and Call Options for the Common          _________________________________________________________________          Stock of  Santa Fe Int'l  Corp., 817 F.2d 1018,  1021-22 (2d Cir.          _______________________________          1987).  Hence, we take  no view of either their  putative appeals          of  the district  court's  May  13 and  July  7  orders or  their          characterization  of  those   orders  as  modifications  to,   or          extensions of, a de facto preliminary injunction.                                          29                    In a  closely related  initiative, all the  appellants,          relying on  Railroad Comm'n v.  Pullman Co., 312 U.S.  496 (1941)                      _______________     ___________          and Burford v.  Sun Oil Co.,  319 U.S. 315  (1943), invite us  to              _______     ___________          scrutinize  the  district court's  unwillingness to  abstain from          deciding  this case.   We  decline  the invitation.   A  district          court's  refusal to  abstain  under  doctrines  like  Pullman  or                                                                _______          Burford is not  an immediately appealable event.   See Gulfstream          _______                                            ___ __________          Aerospace Corp.  v. Mayacamas  Corp., 485  U.S. 271,  278 (1988).          _______________     ________________          Thus, acceding to the appellants' request would place this  court          in the bizarre situation of deciding a nonappealable order at the          behest of non-parties.                    Let  us  be perfectly  clear.   We  recognize  that the          appellants make some  strong arguments in support  of abstention.          The  district court,  if it so  chooses, is  free to  revisit the          issue.  At this point in  the litigation, however, that court  is          the only tribunal with authority to address the question.          VI.  CONCLUSION          VI.  CONCLUSION                    We need  go no  further.  The  future direction  of the          electric utility  market in New  Hampshire is a matter  of utmost          importance, but parties who are merely interested in  the outcome          of a  case do  not automatically qualify  for intervention  as of          right   under  Rule  24(a)(2).     Under  the   totality  of  the          circumstances that obtain here, we discern no abuse of discretion          in the  district court's  determination that  the appellants  are          among that number.                    In Nos. 97-1762, 97-1763, 97-1773, 97-1780, 97-1805 and                    In Nos. 97-1762, 97-1763, 97-1773, 97-1780, 97-1805 and                    _______________________________________________________          97-2070,  the  orders  denying intervention  are  affirmed.   The          97-2070,  the  orders  denying intervention  are  affirmed.   The          __________________________________________________________    ___          remaining   appeals   are  dismissed   for   want  of   appellate          remaining   appeals   are  dismissed   for   want  of   appellate          _________________________________________________________________                                          30          jurisdiction.    Costs shall  be  taxed  in favor  of  plaintiffs          jurisdiction.    Costs shall  be  taxed  in favor  of  plaintiffs          ____________     ________________________________________________          against all appellants.          against all appellants.          ______________________                                          31
