Fleming v. Town of Silver City

1999 NMCA 149, 992 P.2d 308, 128 N.M. 295
CourtNew Mexico Court of Appeals
DecidedSeptember 16, 1999
Docket19,414
StatusPublished
Cited by14 cases

This text of 1999 NMCA 149 (Fleming v. Town of Silver City) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fleming v. Town of Silver City, 1999 NMCA 149, 992 P.2d 308, 128 N.M. 295 (N.M. Ct. App. 1999).

Opinion

OPINION

WECHSLER, J.

{1} Appellants Henry Burk Fleming, Mark J. Wilson, Edward Stout, Jr. and Louise R. Fleming appeal the district court’s decision upholding the action of Appellee Town of Silver City’s (Town) adjustment of its water and sewer rates. On appeal to this Court, Appellants assert that the district court erred by failing to require that the Town comply with the requirements of the New Mexico Public Utility Act, NMSA 1978, §§ 62-1-1 to 62-13-14 (1887, as amended through 1996) (PUA), and the regulations of the New Mexico Public Utility Commission (PUC) (now the New Mexico Public Regulation Commission (PRC)), see NMSA 1978, § 8-8-21 (1998) that would apply to privately owned public utilities seeking a rate increase. Appellants also challenge the district court’s decision to permit one of the Town’s witnesses to testify as an expert witness in water rates. We affirm.

Facts and Procedural History

{2} On March 18, 1996, the Town, by ordinance, increased its water and sewer rates and established a new water rate design spreading its rates over eight rate classifications rather than six and charging twenty-one separate rates rather than twelve. Appellants were among a group of fourteen ratepayers who challenged the Town’s actions in district court. Among other allegations, they alleged that the Town’s new water rate structure resulted in unfair rates in violation of the Equal Protection Clauses of the United States and New Mexico Constitutions. After trial, the district court entered findings of fact and conclusions of law finding that the new rates were “fair and equitable under all of the circumstances.” The conclusions of law state:

1. Rates charged for water consumption by the Town of Silver City are reasonable among the various categories of users.
2. Rates charged for water consumption by the Town of Silver City are fair and equitable.
3. Water system services of the Town of Silver City are not subject to regulation by the Public Utilities Commission.
4.- The methodology utilized by the Public Utilities Commission analyzing rates for water service by entities within its regulatory jurisdiction, is not required by law to be utilized by municipal water utilities not within the regulatory jurisdiction of the Public Utilities Commission.
5.The laws of the State of New Mexico mandate no particular methodology to be followed by a municipality in determining what are reasonable, fair, and equitable rates for use of municipal water utility.

Whether the Town Needed to Comply with Statutory and Regulatory Requirements to Set Water Rates

{3} In their brief in chief, Appellants challenge only Conclusions of Law Four and Five. They do not challenge that the Town’s new rates are fair and equitable and that the new rate structure is reasonable. As a consequence, we do not address Conclusions of Law One, Two, and Three. See Rule 12-213(A) NMRA 1999. All issues raised in the docketing statement, but not argued in the brief in chief are deemed abandoned. See State v. Ramos, 115 N.M. 718, 720, 858 P.2d 94, 96 (Ct.App.1993).

{4} Appellants argue that the Town was required to justify the reasonableness' of its new rates by introducing “at minimum ... a full cost of service study similar to the state Public Utility Commission’s approach and method.” They base their argument on NMSA 1978, § 3-18-l(H) (1972) which permits a municipality to “establish rates for services provided by municipal utilities and revenue-producing projects, including amounts which the governing body determines to be reasonable and consistent with amounts received by private enterprise in the operation of similar facilities.” Appellants rely on our Supreme Court’s interpretation of the statutory predecessor to Section 3-18-l(H) in Apodaca v. Wilson, 86 N.M. 516, 525 P.2d 876 (1974), to support their view that a municipality’s processes of establishing reasonable rates must be identical to the processes used by a privately owned public utility company that is regulated by the PUC. We cannot agree.

{5} First, as a matter of statutory construction, Appellants’ proposition is erroneous. In the PUA, the legislature declared as a matter of state policy that public utilities be regulated and supervised so that they would, in part, provide reasonable and proper services at fair, just, and reasonable rates. See § 62-3-l(B). The PUA recognizes that public utilities “are affected with the public interest.” Section 62-3-l(A). The PUA defines public utilities which fall within this statutory regulation and supervision, in pertinent part, as “every person not engaged solely in interstate business ... that ... may own, operate, lease or control ... any plant, property or facility for the supplying, storage, distribution or furnishing to or for the public of water....” Section 62-3-3(0(3).

{6} Although under this statutory definition a wafer system of a municipality may be considered a public utility, the PUA contains other express provisions relating to municipal water utilities. Most clearly, the PUA excludes a municipal utility from its definition of public utility by defining a “person” within the PUA to exclude a municipal utility unless the municipality “has elected to come within the terms” of the PUA. Section 62-3-3(E). Indeed, the PUA specifically states that “[i]n the absence of such voluntary election by any municipality to come within the provisions of the [PUA], the municipality shall be expressly excluded from the operation of [the PUA] and from the operation of all of its provisions,' and no such municipality shall for any purpose be considered a public utility.” Id. A municipality may elect to have its utility operations regulated and supervised as a public utility under the PUA through an election by its voters. See § 62-6-5. Otherwise, a municipal water system does not fall within the purview of the PUA except that the regulation of the PUA extends to prohibit a municipality from operating within the service area of a regulated public utility until the municipality exercises its option to subject itself to regulation under the PUA so that both it and the existing utility may be regulated to avoid unreasonable and unnecessary duplication of plant and resources. See § 62-3-2.1(C). Further, a municipality with a population of more than two hundred thousand may be subject to limited PUA regulation. See § 62-9-1.1.

{7} We engage in statutory construction as an issue of law, and as such, conduct a de novo review. See State v. Cleve, 1999-NMSC-017, ¶ 7, 127 N.M. 240, 980 P.2d 23. We seek to fulfill the intent of the legislature, and in doing so, apply the plain meaning of statutory language. See Cummings v. X-Ray Assocs. of N.M., P.C., 1996-NMSC-035, ¶ 44, 121 N.M. 821, 918 P.2d 1321. The statutory scheme clearly indicates that the Town’s water utility is not regulated under the PUA.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State Ex Rel. CYFD v. Donna E. & Harley E.
New Mexico Court of Appeals, 2019
Sanchez v. Sanchez
New Mexico Court of Appeals, 2019
Moongate Water Co., Inc. v. City of Las Cruces
2013 NMSC 18 (New Mexico Supreme Court, 2013)
Moongate Water Co. v. City of Las Cruces
2012 NMCA 003 (New Mexico Court of Appeals, 2012)
Moongate Water Co., Inc. v. City of Las Cruces
2012 NMCA 3 (New Mexico Court of Appeals, 2011)
Knight v. Dardanelles Foundation
New Mexico Court of Appeals, 2011
State v. Downey
2007 NMCA 046 (New Mexico Court of Appeals, 2007)
Fernandez v. Española Public School District
2004 NMCA 068 (New Mexico Court of Appeals, 2004)
City of Sunland Park v. New Mexico Public Regulation Commission
2004 NMCA 024 (New Mexico Court of Appeals, 2003)
State v. Rendleman
2003 NMCA 150 (New Mexico Court of Appeals, 2003)
Chase Manhattan Bank v. Candelaria
2004 NMCA 112 (New Mexico Court of Appeals, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
1999 NMCA 149, 992 P.2d 308, 128 N.M. 295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fleming-v-town-of-silver-city-nmctapp-1999.