Court pauses order calling on former regulator to turn over cell phone in Cardinal-Hickory suit

A Wisconsin appeals court this week hit pause on an order meant to compel a former regulator to turn over his personal cell phone in a case alleging he was biased in his vote to approve a nearly $500 million transmission line.

The decision comes after Dane County judge Jacob Frost ordered former Wisconsin Public Service Commission member Mike Huebsch on Friday to turn over his phone for examination and answer questions from environmental groups challenging the PSC’s approval of the 102-mile Cardinal-Hickory Creek power line. Court documents uncovered last spring showed Huebsch had been communicating with utility executives over the encrypted-messaging service Signal for years before voting to approve the transmission project in late 2019.

In a decision Monday, however, the Wisconsin Court of Appeals temporarily paused Frost’s subpoena calling on Huebsch to turn over his cell phone. The court said it issued the stay to give it time to consider Huebsch’s appeal of Frost’s order — delaying court proceedings in the legal challenge over the power line.

Environmental groups including the Driftless Area Land Conservancy and the Wisconsin Wildlife Federation are challenging PSC’s decision to approve the Cardinal-Hickory Creek project in state and federal court, arguing Huebsch’s contact with utility officials tainted the regulatory agency’s unanimous approval of the transmission line. The appeals court noted Judge Lisa stark had made “nominal” contributions of less than $100 to to the Wisconsin Wildlife Federation.

The appeals court’s decision comes after the PSC last week deadlocked on a request from utilities to revoke the permit for the transmission line and reconsider the project. In an unprecedented step, the utilities American Transmission Co. and ITC Midwest asked the PSC to undo its approval of the power line and quickly issue a new permit.

Huebsch, meanwhile, maintained that he used the Signal messaging app to only communicate about personal matters. It’s unclear if the contents of his encrypted messages can be recovered.

Commissioners Rebecca Valcq and Ellen Nowak ultimately couldn’t agree on how to handle the request, leaving the PSC’s initial approval of the Cardinal-Hickory line intact. Commissioner Tyler Huebner recused himself from the discussion.

Although the commission may still reconsider the project, courts may also decide the fate of the power line, which utilities hoped to start building this fall.

Judge Frost had expressed concern over Huebsch’s appearance of bias even before utilities revealed he’d used Signal to talk to executives. In May, he wrote in an order that he’d revoke a permit for the Cardinal-Hickory Creek project if environmental groups could show Huebsch may not have been impartial.

Documents dug up in federal court previously showed Huebsch sought to become CEO of Dairyland Power Cooperative months after leaving the commission and voting to approve two major projects the utility had a stake in, Cardinal-Hickory and the Nemadji Trail natural gas plant in Superior.