Southern Union Gas Co. v. New Mexico Public Utility Commission

1997 NMSC 056, 947 P.2d 133, 124 N.M. 176
CourtNew Mexico Supreme Court
DecidedSeptember 24, 1997
DocketNo. 23501
StatusPublished
Cited by5 cases

This text of 1997 NMSC 056 (Southern Union Gas Co. v. New Mexico Public Utility Commission) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Southern Union Gas Co. v. New Mexico Public Utility Commission, 1997 NMSC 056, 947 P.2d 133, 124 N.M. 176 (N.M. 1997).

Opinions

OPINION

BACA, Justice.

I.

1. Southern Union Gas Company (“Southern Union”) appeals a New Mexico Public Utility Commission (“Commission”) Order dismissing with prejudice Public Service Company of New Mexico’s (“PNM”) application for a gas rate increase. Southern Union raises several issues on appeal, including the allegation that the Commission erred in concluding that it lacked jurisdiction to consider the requested rate increase. We review the Order pursuant to NMSA 1978, Section 62-11-1 (1993) (providing for appeal of Commission orders directly to the Supreme Court). We affirm the Commission’s Order based on its lack of jurisdiction to consider the requested rate increase, rendering resolution of all other appellate issues unnecessary.

II.

2. On January 28, 1985, Southern Union sold its New Mexico gas utility assets to PNM. The Commission approved the sale, retaining jurisdiction to the extent permitted by law in order to ensure compliance with the Order authorizing the sale. Under the Purchase and Sales Agreement, Southern Union retained liability for “litigation and claims resulting from any act or omission by Southern Union ... with respect to ... the operation of the businesses.” In addition, PNM agreed to pursue on Southern Union’s behalf, “regulatory applications and proceedings” necessary for the recovery of these excluded obligations. Thus, Southern Union retained liability for the pre-January 28, 1985, claims later made by Unicon Production Company (“Unicon”), in connection with take-or-pay gas purchase contracts entered into by Southern Union and Unicon in the 1950s.

3. In 1989, Southern Union paid approximately $3.4 million to Unicon in accordance with a settlement agreement, which discharged Southern Union from liability for Unicon’s claims arising out of the take-or-pay contracts. Southern Union then requested that PNM file a rate increase application on Southern Union’s behalf so that Southern Union could recover seventy-five percent of the costs of litigation and settlement associated with the Unicon settlement. On October 31,1990, in compliance with the Purchase and Sales Agreement, PNM filed a rate increase request with the Commission on behalf of Southern Union.

4. Initially, the Commission dismissed the rate increase request without prejudice, acknowledging that it had jurisdiction over the subject matter and parties involved, but finding that PNM had failed to meet its burden of proof. On April 28, 1995, PNM again requested a rate increase on behalf of Southern Union. Southern Union intervened in support of PNM’s application. In response to the second request, and following receipt of three motions to dismiss, the Commission entered a dismissal with prejudice without specifying the grounds for the dismissal. PNM did not appeal that Order. However, Southern Union filed both a motion for rehearing with the Commission and this appeal.

III.

5. We are asked to review the second Commission Order disposing of PNM’s rate increase application. Although Southern Union raises many issues on appeal, the dispositive issue is whether the Commission has jurisdiction over a public gas utility’s request to recover costs incurred by its predecessor utility. When addressing jurisdictional determinations made by the Commission we conduct a de novo review, giving little deference to the Commission’s jurisdictional determination. United Water N.M., Inc. v. New Mexico Pub. Util. Comm’n, 1996 NMSC 007 ¶ 8, 121 N.M. 272, 274-75, 910 P.2d 906, 908-09 (1996).

6. Southern Union points to the Commission’s Order retaining jurisdiction over matters affecting the Southern Union/PNM Purchase and Sales Agreement as support for the Commission’s determination that it had jurisdiction over PNM, Southern Union, and PNM’s rate increase application. However, the scope of the Commission’s jurisdiction is defined by statute and the Commission cannot enter an order extending the scope of that jurisdiction. See United Water, 1996 NMSC 007 ¶ 8, 121 N.M. 272, 910 P.2d 906; see also Public Serv. Co. of N.M. v. New Mexico Envtl. Improvement Bd., 89 N.M. 223, 227, 549 P.2d 638, 642 (Ct.App.1976) (administrative agency cannot amend or enlarge statutorily defined authority). Thus, the Commission’s jurisdiction over this matter cannot be founded on the language of the Order.

7. Southern Union next argues that the Commission was obligated to assert jurisdiction in this case based on their prior assertion of jurisdiction in similar proceedings. The Commission, according to Southern Union, is prohibited from changing established policies without notice to the affected parties. Without resolving whether the Commission has improperly asserted jurisdiction over matters similar to the instant case, we reiterate that the Commission cannot legitimately exercise jurisdiction over Southern Union unless Southern Union properly falls within the Commission’s statutorily defined jurisdiction. We are not obligated to enforce, nor should we enforce a pattern of erroneous'jurisdictional determinations in order to achieve consistency in the Commission’s assertion of jurisdiction. Cf. Environmental Improvement Bd., 89 N.M. at 227, 549 P.2d at 642. The rule prohibiting the Commission from departing from past practice absent prior notice does not apply to jurisdictional determinations. Cf. Hobbs Gas Co. v. New Mexico Pub. Serv. Comm’n, 115 N.M. 678, 684, 858 P.2d 54, 62 (1993) (holding Commission could not depart from past practice absent notice to utility which relied on past practice in context of ordered refund by gas utility). Thus, regardless of whether the Commission has previously asserted jurisdiction over cases of a similar nature, we must still find a statutory basis for allowing the assertion of jurisdiction in the instant ease.

8. The Commission has jurisdiction only over entities functioning as public utilities. See El Vadito de los Cerrillos Water Ass’n v. New Mexico Pub. Serv. Comm’n, 115 N.M. 784, 788, 858 P.2d 1263, 1267 (1993). The Public Utility Act defines “public utility” as follows:

now [do] or hereafter may own, operate, lease or control: ...
(2) any plant, property or facility for the manufacture, storage, distribution, sale or furnishing to or for the public of natural or manufactured gas or mixed or liquefied petroleum gas, or light, heat or power or for other uses.

NMSA 1978, § 62-3-3(G) (1993) (emphasis added). Furthermore, a public utility is one “affected with the public interest” and where “a substantial portion of their business ... involves the rendition of essential public services to a large number of the general public.” NMSA 1978, § 62 — 3—1(A)(1) (1967). This Court has found that the Commission lacked jurisdiction over parties who were not then operating as public utilities. See, e.g., El Vadito, 115 N.M.

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Bluebook (online)
1997 NMSC 056, 947 P.2d 133, 124 N.M. 176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southern-union-gas-co-v-new-mexico-public-utility-commission-nm-1997.