                                                               FILED
                                  PUBLISH          United States Court of Appeals
                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS          June 1, 2015
                               TENTH CIRCUIT           Elisabeth A. Shumaker
                                                           Clerk of Court


TRI-STATE GENERATION AND
TRANSMISSION ASSOCIATION,
INC., a Colorado nonprofit
cooperative corporation,

       Plaintiff - Appellee,

v.                                             No. 14-2164

NEW MEXICO PUBLIC
REGULATION COMMISSION, a
New Mexico Agency, and its
members; COMMISSIONER
PATRICK H. LYONS;
COMMISSIONER THERESA
BECENTI-AGUILAR;
COMMISSIONER BEN L. HALL;
COMMISSIONER VALERIE
ESPINOZA; COMMISSIONER
KAREN L. MONTOYA, acting in
their official capacities,

       Defendants.

----------------------

KIT CARSON ELECTRIC
COOPERATIVE, INC.,

      Movant - Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW MEXICO
                  (D.C. No. 1:13-CV-00085-KG-LAM)
Charles V. Garcia of Cuddy & McCarthy, L.L.P., Albuquerque, New Mexico,
(Arturo L. Jaramillo, and Young-Jun Roh of Cuddy & McCarthy, L.L.P., Santa
Fe, New Mexico, on the briefs), for Movant - Appellant.

John R. Cooney, (Earl E. DeBrine, Jr., and Joan E. Drake of Modrall, Sperling,
Roehl, Harris & Sisk, P.A., Albuquerque, New Mexico; Robert E. Youle and
Brian G. Eberle of Sherman & Howard, L.L.C., Denver, Colorado, on the brief),
for Plaintiff - Appellee.


Before KELLY, PHILLIPS, and MORITZ, Circuit Judges.


KELLY, Circuit Judge.


      Movant-Appellant Kit Carson Electric Cooperative, Inc. (KCEC) appeals

from the district court’s denial of its motion seeking intervention as of right or

permissive intervention in a pending case. Tri-State Generation & Transmission

Ass’n v. N.M. Pub. Regulation Comm’n, Civ. No. 13-00085 KG/LAM (D.N.M.

Aug. 18, 2014). Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.



                                    Background

      Tri-State Generation and Transmission Association, Inc. (Tri-State), a

Colorado non-profit regional cooperative that provides wholesale electric power,

filed suit against the New Mexico Public Regulation Commission (NMPRC)

seeking declaratory and injunctive relief under 42 U.S.C. § 1983. Tri-State

argued that the NMPRC’s exercise of jurisdiction and suspension of Tri-State’s

                                        -2-
wholesale electric rates in New Mexico violated the Commerce Clause of the

United States Constitution.

      Briefly, Tri-State is a regional generation and transmission (G&T)

cooperative that provides wholesale electric power to its forty-four member

systems in four states—Colorado, Nebraska, New Mexico, and Wyoming. Each

of the member systems has a representative that sits on Tri-State’s Board of

Directors and has an equal vote as to Tri-State’s annual rates. Tri-State charges a

“postage-stamp rate” for electricity to its members—i.e., the members systems are

all charged the same amount. Aplt. App. 649 & n.3. Each member system has

entered into a requirements contract with Tri-State, pursuant to which each

member agrees to purchase and receive from Tri-State all the electric power and

energy the member requires. These member systems then sell the electricity

provided by Tri-State to their members at retail. One of Tri-State’s member

systems is KCEC, a New Mexico rural electric cooperative that provides services

to roughly 28,500 commercial, governmental, and residential member-customers

in Northern New Mexico.

      Public utilities in New Mexico are regulated by the NMPRC. See N.M.

Stat. Ann. § 62-6-4(A) (granting the NMPRC the “general and exclusive power

and jurisdiction to regulate and supervise every public utility in respect to its

rates and service regulations”). In 1999, Tri-State and Plains Electric Generation

and Transmission Cooperative, Inc. (Plains) applied to the NMPRC to allow the

                                         -3-
two to merge. Tri-State, Plains, and others entered into a Stipulation which,

among other things: (1) required Tri-State to file an “Advice Notice” with the

NMPRC prior to setting rates for New Mexico members; (2) provided member

cooperatives with the opportunity to file protests to Tri-State’s rates with the

NMPRC; and (3) provided procedures for the NMPRC to suspend the rates,

conduct a hearing, and “establish reasonable rates.” Aplt. App. 541. In 2000, the

NMPRC approved the Stipulation and merger on condition that Tri-State would

be subject to its jurisdiction “to the extent provided by law.” Id. at 407. The

New Mexico legislature subsequently codified the Stipulation’s protest

procedures, which provide in relevant part:

      New Mexico rates proposed by a generation and transmission
      cooperative shall be filed with the commission in the form of an
      advice notice, a copy of which shall be simultaneously served on all
      member utilities. Any member utility may file a protest of the
      proposed rates no later than twenty days after the generation and
      transmission cooperative files the advice notice. If three or more
      New Mexico member utilities file protests and the commission
      determines there is just cause in at least three of the protests for
      reviewing the proposed rates, the commission shall suspend the rates,
      conduct a hearing concerning reasonableness of the proposed rates
      and establish reasonable rates.

N.M. Stat. Ann. § 62-6-4(D). In 2012, Tri-State’s Board of Directors voted to

approve a 4.9% rate increase for the calendar year 2013. Tri-State appropriately

filed Advice Notice No. 15 with the NMPRC to inform it of the increase. KCEC,

along with two other New Mexico member systems, filed protests objecting to the

rate increase. Over Tri-State’s objections, the NMPRC suspended Tri-State’s rate

                                         -4-
increase for 2013.

      On January 25, 2013, Tri-State filed the present action against the NMPRC.

Later, in September 2013, Tri-State approved a wholesale rate increase for 2014

and filed an Advice Notice with the NMPRC. After rate protests by KCEC and

three others, the NMPRC proceeded to suspend Tri-State’s 2014 rate increases as

well. The NMPRC consolidated the proceedings on both the 2013 and 2014

wholesale rates. These proceedings remain pending before the NMPRC.

      In February 2014, Tri-State filed an amended complaint adding factual

allegations regarding the NMPRC’s suspension of its 2014 wholesale rate. Tri-

State’s amended complaint asserts Tri-State is entitled to declaratory and

injunctive relief because “[t]he Commission’s exertion of jurisdiction to suspend

and subsequently review and establish Tri-State’s rates in New Mexico constitutes

economic protectionism and imposes a burden on interstate commerce in violation

of the Commerce Clause.” Aplt. App. 658–60. Tri-State requested an order

declaring that:

       (a) the Commission lacks jurisdiction over Tri-State’s rates and
      interstate wholesale contracts in New Mexico and any attempt by the
      Commission to exercise jurisdiction over, suspend and/or determine
      Tri-State’s rates is unconstitutional under the United States
      Constitution; (b) the Commission’s order suspending Tri-State’s
      2013 and 2014 wholesale rates and setting a rate hearing is
      unconstitutional under the United States Constitution; (c) the
      Commission may not take any action with respect to Tri-State’s rates
      or contracts.

Id. at 661; see also id. at 662 (requesting injunctive relief under 42 U.S.C. §

                                         -5-
1983). In its answer, the NMPRC raised eight affirmative defenses, including the

doctrines of waiver and estoppel. It also reserved the right to raise further

affirmative defenses that later might become available.

      On May 28, 2013, KCEC sought to intervene as of right pursuant to Federal

Rule of Civil Procedure 24(a)(2) and permissively pursuant to Rule 24(b). Tri-

State opposed intervention, but the NMPRC did not.

      Though not a party to the litigation, KCEC filed an answer to Tri-State’s

complaint in which it asserted essentially the same affirmative defenses to Tri-

State’s claims as had the NMPRC. Aplt. App. 382. The only unique defense

KCEC presented was that Tri-State’s complaint failed to state a claim upon which

relief could be granted. Prior to the district court’s ruling on KCEC’s motion, the

NMPRC moved for summary judgment, arguing both that: (1) Tri-State was

estopped from challenging the NMPRC’s rate-making jurisdiction given its

agreement to the earlier Stipulation; and (2) the NMPRC’s order did not violate

either New Mexico law or the Commerce Clause of the United States

Constitution. Id. at 931–47. Though still not a party to the litigation, KCEC filed

a proposed response to the NMPRC’s motion for summary judgment, presenting

essentially the same arguments as the NMPRC and providing no additional

evidence. Aplee. Supp. App. 52–58.

      The district court then denied KCEC’s motion to intervene, finding that

neither intervention as of right nor permissive intervention was appropriate.

                                         -6-
KCEC timely appealed.



                                      Discussion

      KCEC argues that the district court erred in denying intervention as of right

under Rule 24(a)(2) and in denying permissive intervention under Rule 24(b).

A.    Intervention as of Right

      We review de novo the denial of a motion to intervene as of right. Kane

Cnty., Utah v. United States, 597 F.3d 1129, 1133 (10th Cir. 2010). Rule 24(a) of

the Federal Rules of Civil Procedure provides that, upon timely motion, the court

must allow a party to intervene who: “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.”

      Tri-State does not dispute that KCEC’s motion for intervention was timely.

Thus, we address whether KCEC can satisfy the remaining two requirements of

intervention as of right. First, KCEC must establish an interest in the property or

transaction underlying the action that might be impaired by the action’s

disposition. See Natural Res. Def. Council, Inc. v. U.S. Nuclear Regulatory

Comm’n, 578 F.2d 1341, 1345 (10th Cir. 1978) (“the question of impairment is

not separate from the question of existence of an interest”). KCEC identifies

several interests that could be impaired by the case at hand that it contends are

                                          -7-
sufficient to satisfy Rule 24(a)(2): (1) its “persistent record of advocacy to obtain

reasonable rates from Tri-State”; (2) its “direct economic interest in the

determination of whether the NMPRC’s exercise of its rate jurisdiction pursuant

to Section 62-6-4(D) violates the Commerce Clause”; (3) its interest in upholding

its membership agreement and power supply contract with Tri-State; (4) its

statutory right to regulatory review of Tri-State’s rates; and (5) its interest in

upholding the Tri-State/Plains merger and the Stipulation. Aplt. Br. 23–26. We

assume, as did the district court, that KCEC has sufficiently shown an interest in

the lawsuit that may be impaired by its disposition. Cf. Kane Cnty., 597 F.3d at

1133. Thus, we proceed directly to the inquiry whether KCEC’s interest is

adequately represented by the NMPRC.

      “Even if an applicant satisfies the other requirements of Rule 24(a)(2), it is

not entitled to intervene if its ‘interest is adequately represented by existing

parties.’” San Juan Cnty., Utah v. United States, 503 F.3d 1163, 1203 (10th Cir.

2007) (en banc) (quoting Fed. R. Civ. P. 24(a)(2)). This requirement is satisfied

where the applicant “shows that representation of his interest may be

inadequate”—a “minimal” showing. Trbovich v. United Mine Workers of Am.,

404 U.S. 528, 538 n.10 (1972) (emphasis added) (internal quotation marks

omitted); see also Utah Ass’n of Counties v. Clinton, 255 F.3d 1246, 1254 (10th

Cir. 2001). Thus, the likelihood of a divergence of interest “need not be great” to

satisfy the requirement. Natural Res. Def. Council, 578 F.2d at 1346.

                                          -8-
      For instance, where a governmental agency is seeking to represent both the

interests of the general public and the interests of a private party seeking

intervention, we have repeatedly found representation inadequate for purposes of

Rule 24(a)(2). See, e.g., Utahns for Better Transp. v. U.S. Dep’t of Transp., 295

F.3d 1111, 1117 (10th Cir. 2002) (“[I]n such a situation the government’s

prospective task of protecting ‘not only the interest of the public but also the

private interest of the petitioners in intervention’ is ‘on its face impossible’ and

creates the kind of conflict that ‘satisfies the minimal burden of showing

inadequacy of representation.’” (citation omitted)); Clinton, 255 F.3d at 1256

(inadequate representation prong satisfied where government was “obligated to

consider a broad spectrum of views, many of which may conflict with the

particular interest of the would-be intervenor”); Nat’l Farm Lines v. Interstate

Commerce Comm’n, 564 F.2d 381, 384 (10th Cir. 1977) (inadequate

representation prong satisfied where Interstate Commerce Commission sought to

protect “not only the interest of the public but also the private interest of the

petitioners in intervention”).

      These cases, however, are inapplicable where “‘the objective of the

applicant for intervention is identical to that of one of the parties.’” City of

Stilwell, Okla. v. Ozarks Rural Elec. Coop. Corp., 79 F.3d 1038, 1042 (10th Cir.

1996) (quoting Bottoms v. Dresser Indus., Inc., 797 F.2d 869, 872 (10th Cir.

1986)); see also Coal. of Ariz./N.M. Counties for Stable Econ. Growth v. Dep’t of

                                          -9-
Interior, 100 F.3d 837, 845 (10th Cir. 1996). Under such circumstances, we

presume representation is adequate. See Bottoms, 797 F.2d at 872–73; San Juan

Cnty., 503 F.3d at 1204 (opinion of Hartz, J.); id. at 1227 & n.1 (Ebel, J.,

dissenting). 1 Thus, even though a party seeking intervention may have different

“ultimate motivation[s]” from the governmental agency, where its objectives are

the same, we presume representation is adequate. Ozarks, 79 F.3d at 1042.

      We are presented with precisely such a situation here, where the NMPRC

and KCEC have identical litigation objectives: preserving the NMPRC’s rate

jurisdiction over Tri-State. All of KCEC’s claimed interests—its track record of

rate advocacy, its direct economic interest in the result of the litigation, its

interest in upholding its contracts with Tri-State, its interest in preserving its right

to regulatory review of rates, and its interest in upholding the Tri-State/Plains

merger and Stipulation—ineluctably flow from its objective of preserving the

NMPRC’s jurisdiction over Tri-State’s wholesale electricity rates. Each of



      1
         In San Juan County, this court addressed en banc whether several
conservation groups were entitled to intervene in a federal quiet-title action
brought by San Juan County against the United States. 503 F.3d at 1167. Six
judges concluded that the conservation groups did not have a sufficient “interest”
under Rule 24(a), id. at 1207 (Kelly, J., concurring), and thus had no occasion to
address whether the conservation groups’ interests would be adequately
represented by the United States. Of the judges to address the adequate
representation prong, all seven—Judge Hartz writing for three judges and Judge
Ebel writing for four—agreed that a presumption of adequate representation
applied where an applicant for intervention had objectives “identical” to a party to
the suit. Id. at 1204 (opinion of Hartz, J.); id. at 1227 & n.1 (Ebel, J., dissenting).

                                         - 10 -
KCEC’s claimed interests are part and parcel of its broader interest in maintaining

the NMPRC’s jurisdiction over these rates.

      And of course, the NMPRC’s objective in the proceeding is

identical—preserving its own jurisdiction over Tri-State’s wholesale electric

rates. This simply is not a case where the governmental agency must account for

a “broad spectrum” of interests that may or may not be coextensive with the

intervenor’s particular interest. Clinton, 255 F.3d at 1256. Tri-State’s suit

challenges the constitutionality of a New Mexico statute granting the NMPRC

power to, under certain circumstances, “suspend” a G&T cooperative’s rates,

“conduct a hearing” on the reasonableness of the rates, and “establish reasonable

rates.” N.M. Stat. Ann. § 62-6-4(D). Thus, the suit presents a “binary”

issue—whether the New Mexico statute granting the NMPRC this authority

accords with the Commerce Clause of the United States Constitution. San Juan

Cnty., 503 F.3d at 1228 (Ebel, J., dissenting). The challenge does not require the

NMPRC to strike some balance between the interest of electricity wholesalers,

retailers, and the general public. Nor does it require the NMPRC to determine the

reasonableness of Tri-State’s current rates or establish reasonable rates. It simply

requires the NMPRC to argue its authority under § 62-6-4(D) does not violate the

Commerce Clause.

      Given that the NMPRC and KCEC have identical objectives in the dispute,

we presume that the NMPRC’s representation is adequate. To overcome this

                                       - 11 -
presumption, KCEC must make “a concrete showing of circumstances” that the

NMPRC’s representation is inadequate. Bottoms, 797 F.2d at 872 (quoting 7A

Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1909, at

529 (1972)). These circumstances include a “showing that there is collusion

between the representative and an opposing party, that the representative has an

interest adverse to the applicant, or that the representative failed to represent the

applicant’s interest.” Id. at 872–73 (citing Sanguine, Ltd. v. U.S. Dep’t of

Interior, 736 F.2d 1416, 1419 (10th Cir. 1984)).

      KCEC argues that “the NMPRC, as an adjudicatory body in a pending rate

case, is limited in its ability to present evidence or advance arguments” regarding

how its rate-making authority satisfies the Commerce Clause. Aplt. Br. 31. It

argues that, under existing Commerce Clause standards, the NMPRC will have to

establish that the law’s burden on interstate commerce was not “clearly excessive

in relation to the putative local benefits.” Id. at 30 (quoting Ark. Elec. Coop.

Corp. v. Ark. Pub. Serv. Comm’n, 461 U.S. 375, 395 (1983)). KCEC contends

that the NMPRC will be inhibited from effectively making this argument, given

its “impartial adjudicatory role” in the pending rate proceedings. Id. at 31. But

contrary to KCEC’s assertion, the pendency of rate proceedings will not prevent

the NMPRC from arguing the local benefits furthered by § 62-6-4(D). The

NMPRC need not argue for a particular rate or rate structure in order to set forth

the intrastate benefits of its jurisdiction over Tri-State’s rates.

                                          - 12 -
      In addition, there is no reason to think that the NMPRC will not vigorously

argue in favor of its statutory authority. The NMPRC is represented by the New

Mexico Attorney General, who is obligated by law to defend the constitutionality

of the statute. See N.M. Stat. Ann. § 8-5-2. Further, through this point in

litigation, the NMPRC has “displayed no reluctance” to defend the statute. San

Juan Cnty., 503 F.3d at 1206 (opinion of Hartz, J.); see also Coal. of Ariz./N.M.

Counties, 100 F.3d at 845 (considering DOI’s “reluctance in protecting the Owl”

in finding that DOI may not adequately represent photographer/biologist’s

interests). As noted, the NMPRC has raised a number of affirmative defenses to

Tri-State’s claims and reserved the right to raise additional defenses. KCEC’s

proposed response to Tri-State’s complaint raised nearly identical defenses. The

NMPRC raised additional arguments in its motion for summary judgment,

including that Tri-State was estopped from challenging the NMPRC’s rate-making

jurisdiction given its agreement to the earlier Stipulation. The NMPRC’s

arguments were once again parroted by KCEC in its proposed motion for

summary judgment. In short, the NMPRC appears to be representing KCEC’s

interests precisely as KCEC would.

      Finally, we note that, unlike cases where intervention applicants possessed

unique knowledge or expertise beyond that of the governmental agency, see, e.g.,

Nat’l Farm Lines, 564 F.2d at 383, KCEC does not argue it possesses particular

expertise beyond that of the NMPRC, cf. Kane Cnty., 597 F.3d at 1135.

                                       - 13 -
      For the foregoing reasons, we affirm the district court’s denial of

intervention as of right under Rule 24(a)(2).

B.    Permissive Intervention

      Rule 24(b)(1)(B) governing permissive intervention provides that, on

timely motion, the court may permit anyone to intervene who “has a claim or

defense that shares with the main action a common question of law or fact.” In

exercising its discretion to permit a party to intervene, “the court must consider

whether the intervention will unduly delay or prejudice the adjudication of the

original parties’ rights.” Fed. R. Civ. P. 24(b)(3). The district court observed

that it was clear that KCEC’s affirmative defenses had questions of law and fact

in common with the NMPRC’s defenses. It further rejected Tri-State’s argument

that allowing intervention would yield a deluge of other intervention applications

from similarly situated electricity retailers. Nevertheless, the court found that, on

balance, permissive intervention was inappropriate, because: (1) allowing

intervention would burden the parties with additional discovery; and (2) the

NMPRC would adequately represent KCEC’s interests.

      We review the district court’s denial of permissive intervention for an

abuse of discretion. Kane Cnty, 597 F.3d at 1135; Alameda Water & Sanitation

Dist. v. Browner, 9 F.3d 88, 89–90 (10th Cir. 1993). In reviewing for abuse of

discretion, “we may not . . . substitute our own judgment for that of the trial

court.” Nalder v. West Park Hosp., 254 F.3d 1168, 1174 (10th Cir. 2001)

                                       - 14 -
(internal quotation marks omitted). “An abuse of discretion will be found only

where the trial court makes ‘an arbitrary, capricious, whimsical, or manifestly

unreasonable judgement.’” Fed. Deposit Ins. Corp. v. Oldenburg, 34 F.3d 1529,

1555 (10th Cir. 1994) (quoting United States v. Hernandez-Herrera, 952 F.2d 342,

343 (10th Cir. 1991)). As KCEC notes, “decisions holding that the district court

abused its discretion in denying permissive intervention are predictably rare.”

Aplt. Br. 35–36. This concession is in fact an understatement—KCEC cites no

Tenth Circuit decisions reversing a district court’s denial of permissive

intervention.

      KCEC contends that the district court abused its discretion by relying on

the NMPRC’s adequate representation of KCEC’s interests, both because the

NMPRC could not adequately represent KCEC’s interests and because Rule 24(b)

does not speak to adequate representation as a consideration. Aplt. Br. 40–41.

As to the contention that NMPRC may not adequately represent KCEC’s rights,

we reject this argument for reasons specified above in our Rule 24(a) analysis.

As to KCEC’s suggestion that Rule 24(b) does not provide for consideration of

adequate representation, we have elsewhere affirmed denial of permissive

intervention on such grounds. Ozarks, 79 F.3d at 1043; see also Perry v.

Proposition 8 Official Proponents, 587 F.3d 947, 955 (9th Cir. 2009) (in

exercising discretion under Rule 24(b), district court may consider “whether the

intervenors’ interests are adequately represented by other parties” (citation

                                        - 15 -
omitted)); Am. Ass’n of People with Disabilities v. Herrera, 257 F.R.D. 236, 249

(D.N.M. 2008) (“While not a required part of the test for permissive intervention,

a court’s finding that existing parties adequately protect prospective intervenors’

interests will support a denial of permissive intervention.”).

      KCEC also argues that the district court abused its discretion by finding

that the parties would be burdened by discovery propounded by KCEC virtually

identical to that sought by the NMPRC. KCEC argues that there was no evidence

to support this finding, and that even if there was, the district court always retains

the ability to limit and manage discovery pursuant to its authority under Rule 26

of the Federal Rules of Civil Procedure. Aplt. Br. 38 (citing United States v.

Albert Inv. Co., 585 F.3d 1386, 1396 (10th Cir. 2009)). Given Rule 24(b)(3)’s

mandate to the district court to consider whether intervention might unduly delay

or prejudice adjudication of the original parties’ rights, we think the district court

was entitled to consider the potential for burdensome or duplicative discovery in

its analysis—even given its ability to manage discovery. In short, KCEC has not

shown that the district court’s denial of permissive intervention was “arbitrary,

capricious, whimsical, or manifestly unreasonable.” Oldenburg, 34 F.3d at 1555.

      AFFIRMED.




                                         - 16 -
