{ "id": 4335316, "name": "MOONGATE WATER COMPANY, INC., a New Mexico Public Utility, Plaintiff-Petitioner, v. CITY OF LAS CRUCES, Defendant-Respondent", "name_abbreviation": "Moongate Water Co. v. City of Las Cruces", "decision_date": "2013-05-09", "docket_number": "Docket No. 33,182", "first_page": "117", "last_page": "125", "citations": [ { "type": "official", "cite": "2013-NMSC-018" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "575 A.2d 1089", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7385497 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "1102-03" }, { "page": "1091" }, { "page": "1103" } ], "opinion_index": 0, "case_paths": [ "/a2d/575/1089-01" ] }, { "cite": "172 So. 2d 215", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 1833973 ], "weight": 4, "year": 1965, "pin_cites": [ { "page": "217-18, 220" }, { "page": "217-18" }, { "page": "221-22" }, { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/miss/252/0564-01" ] }, { "cite": "51 S.W.3d 231", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 9497304 ], "year": 2001, "pin_cites": [ { "page": "238", "parenthetical": "\"[Sjtranded costs are investments in or the cost of tangible assets\" that it is in the public interest for utilities to recover" } ], "opinion_index": 0, "case_paths": [ "/sw3d/51/0231-01" ] }, { "cite": "1999-NMSC-019", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257619 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0272-01" ] }, { "cite": "121 N.M. 272", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566590 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/121/0272-01" ] }, { "cite": "1996-NMSC-007", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 23" } ], "opinion_index": 0 }, { "cite": "117 N.M. 302", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552528 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "304", "parenthetical": "action in inverse condemnation is the exclusive remedy when property is taken or damaged for public use by a governmental entity that has failed to pay just compensation or initiate condemnation proceedings" }, { "page": "960", "parenthetical": "action in inverse condemnation is the exclusive remedy when property is taken or damaged for public use by a governmental entity that has failed to pay just compensation or initiate condemnation proceedings" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0302-01" ] }, { "cite": "98 N.M. 138", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582539 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "144-45" }, { "page": "571-72" } ], "opinion_index": 0, "case_paths": [ "/nm/98/0138-01" ] }, { "cite": "2006-NMSC-027", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3670818 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 22" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0528-01" ] }, { "cite": "2009-NMSC-011", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243559 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/146/0001-01" ] }, { "cite": "77 N.M. 104", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2803652 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "106", "parenthetical": "explaining that the right of access is a property right that cannot be taken or damaged without just compensation" }, { "page": "760", "parenthetical": "explaining that the right of access is a property right that cannot be taken or damaged without just compensation" } ], "opinion_index": 0, "case_paths": [ "/nm/77/0104-01" ] }, { "cite": "2007-NMSC-031", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3670073 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 8" }, { "page": "\u00b6 8" }, { "page": "\u00b6\u00b6 3, 5" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0824-01" ] }, { "cite": "1997-NMSC-056", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 18332 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0176-01" ] }, { "cite": "1999-NMCA-149", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 106553 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0295-01" ] }, { "cite": "120 N.M. 579", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558975 ], "weight": 11, "year": 1995, "pin_cites": [ { "page": "588" }, { "page": "37" }, { "page": "588" }, { "page": "37" }, { "page": "581" }, { "page": "30" }, { "page": "582" }, { "page": "31" }, { "page": "588" }, { "page": "588" }, { "page": "37" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0579-01" ] }, { "cite": "2006-NMSC-032", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3671055 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0006-01" ] }, { "cite": "2009-NMSC-013", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243054 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 9" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0024-01" ] }, { "cite": "1999-NMSC-040", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106526 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0309-01" ] }, { "cite": "291 P.3d 599", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMCERT-001", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "269 P.3d 1", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMCA-003", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4188452 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 2" }, { "page": "\u00b6\u00b6 18, 20-21" }, { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm-app/1/0114-01" ] } ], "analysis": { "cardinality": 1030, "char_count": 25650, "ocr_confidence": 0.85, "pagerank": { "raw": 1.2634355476599678e-07, "percentile": 0.612967976125249 }, "sha256": "dd9d0180ebb5bce496115420fd58e922b9493cc8d86aecc29f8fd6d4a279d786", "simhash": "1:385ca908f1c92542", "word_count": 4106 }, "last_updated": "2023-07-14T21:50:37.461651+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "EDWARD L. CH\u00c1VEZ, Justice", "WE CONCUR:", "PETRA JIMENEZ MAES, Chief Justice", "RICHARD C. BOSSON, Justice", "CHARLES W. DANIELS, Justice", "BARBARA J. VIGIL, Justice" ], "parties": [ "MOONGATE WATER COMPANY, INC., a New Mexico Public Utility, Plaintiff-Petitioner, v. CITY OF LAS CRUCES, Defendant-Respondent." ], "opinions": [ { "text": "OPINION\nCH\u00c1VEZ, Justice.\nThe Public Regulation Commission (PRC) issued Moongate Water Company (Moongate) a certificate ofpublic convenience and necessity (CCN) authorizing Moongate, as a public utility, to provide water to an area located outside the city limits of Las Cruces, New Mexico, which we shall label the \u201ccertificated area.\u201d Las Cruces later annexed three undeveloped tracts of land within Moongate\u2019s certificated area, and Las Cruces committed itself to provide water to this area despite Moongate\u2019s CCN. We address two questions in this appeal. First, does Moongate have a right to provide water within the certificated area to the exclusion of Las Cruces? Second, did Las Cruces engage in an unlawful taking of Moongate\u2019s property entitling Moongate to just compensation when Las Cruces chose to provide water within the certificated area? We answer the first question in the negative because Las Cruces is not subject to the Public Utilities Act (the PUA), NMSA 1978, Sections 62-1-1 to -6-28 (1884, as amended through 2003) and NMSA 1978, Sections 62-8-1 to -13-15 (1941, as amended through 2003). We also answer the second question in the negative because on the record before us, Moongate has not proven that it had established infrastructure and was already serving customers in the annexed area. Absent such proof of a tangible loss, a public utility is not entitled to just compensation when a municipality lawfully exercises its right to serve in the public utility\u2019s certificated area. We therefore affirm the Court of Appeals and reverse the district court.\nBACKGROUND\nIn 1983 the PRC issued Moongate, as a public utility, a CCN that was extended in 1984, authorizing Moongate to provide water services in an area which at the time was outside the Las Cruces city limits. Las Cruces, a home-rule municipality, subsequently annexed three undeveloped tracts of land within Moongate\u2019s certificated area, subdivided the land, and committed itself to provide the subdivisions with municipal water service. Moongate filed a complaint against Las Cruces seeking (1) an injunction and declaratory judgment stating that Moongate was exclusively authorized to serve the three subdivisions, (2) compensation for inverse condemnation of its allegedly exclusive right to serve the subdivisions, and (3) compensation for a regulatory taking of its alleged exclusive right to serve.\nLas Cruces filed a motion for summary judgment on all counts of the complaint, and Moongate filed a memorandum in opposition and cross-motion for summary judgment on the second and third counts (inverse condemnation and regulatory takings issues). The district court granted Moongate\u2019s motion on the second and third counts, and concluded that because Moongate\u2019s rights under the CCN were exclusive, Las Cruces was liable for damages as a result of the taking or inverse condemnation to the extent that damages could be proven. The district court held a trial on the issue of damages and ultimately concluded that Moongate had failed to prove damages; therefore, none were awarded.\nMoongate appealed to the Court of Appeals on the issue of damages. Las Cruces appealed the district court\u2019s determination that Moongate\u2019s rights were exclusive and that there had been a taking. The Court of Appeals reversed the district court\u2019s determination that the CCN guaranteed Moongate exclusive service rights. Moongate Water Co. v. City of Las Cruces, 2012-NMCA-003, \u00b6 2, 269 P.3d 1. The Court also concluded that the district court erred in granting summary judgment in Moongate\u2019s favor because the grant was based on the district court\u2019s finding that Moongate had exclusive service rights under its CCN. Id. \u00b6 27. Moongate appealed to this Court, and we granted certiorari. Moongate Water Co. v. Las Cruces, 2012-NMCERT-001, 291 P.3d 599.\nMoongate argues that (1) its CCN is a \u201cvaluable property right[]\u201d and gives it the exclusive right to provide water in the certificated area, and although the PRC cannot regulate municipalities operating outside of the PUA such as Las Cruces, those municipalities cannot override the rights granted to public utilities by the PRC; (2) the only way that an unregulated municipality may take over or invade a certificated area is to either submit to PRC regulation or effectuate a taking via the power of eminent domain; and (3) by invading Moongate\u2019s certificated area, Las Cruces has \u201cdamaged\u201d Moongate\u2019s property, thereby effectuating a taking that requires just compensation.\nDISCUSSION\nThis case hinges on the interpretation of various statutes. Statutory interpretation is an issue of law that we review de novo. Pub. Serv. Co. of N.M. v. N.M. Pub. Util. Comm\u2019n, 1999-NMSC-040, \u00b6 14, 128 N.M. 309, 992 P.2d 860. When this Court construes statutes, \u201cour charge is to determine and give effect to the Legislature\u2019s intent.\u201d Marbob Energy Corp. v. N.M. Oil Conservation Comm'n, 2009-NMSC-013, \u00b6 9, 146 N.M. 24, 206 P.3d 135. In doing so, we employ canons of statutory construction, and look first to the plain meaning of the statute. Id. We give words their ordinary meaning, and if the statute is clear and unambiguous, we \u201crefrain from further statutory interpretation.\u201d Id. (internal quotation marks and citation omitted).\nA. MOONGATE\u2019S CCN DOES NOT PREVENT LAS CRUCES FROM COMPETING WITH MOONGATE IN ITS CERTIFICATED AREA\nThe PUA is \u201ca comprehensive regulatory scheme granting the PRC the policy-making authority to plan and coordinate the activities of New Mexico public utilities.\u201d Do\u00f1a Ana Mut. Domestic Water Consumers Ass\u2019n v. N.M. Pub. Regulation Comm\u2019n, 2006-NMSC-032, \u00b6 16, 140 N.M. 6, 139 P.3d 166. The PRC has the authority and responsibility to issue CCNs, which must be obtained by public utilities prior to any construction, operation, or extension of any public utility plant or system. Section 62-9-1(A).\nHowever, with two exceptions, municipalities are not subject to the PUA. Morningstar Water Users Ass\u2019n v. N.M. Pub. Util. Comm \u2019n, 120 N.M. 579, 588, 904 P.2d 28, 37 (1995). The first exception that would bring a municipality under the PRC\u2019s authority is set forth in NMSA 1978, Section 62-6-5 (1993). It allows municipalities to \u201celect to come within the provisions of [the PUA] and to have the utilities owned and operated by it, either directly or through a municipally owned corporation, regulated and supervised under the provisions of [the PUA].\u201d Las Cruces has not elected to become subject to the PUA, and therefore this exception is inapplicable to this case. The second exception brings municipalities with a population of more than 200,000 within the provisions of the PUA in certain circumstances. NMSA 1978, \u00a7 62-9-1.1(A), (C) (1991); Morningstar, 120 N.M. at 588, 904 P.2d at 37. Las Cruces does not have a population of more than 200,000, and therefore Las Cruces is not subject to the PUA.\nInstead, municipalities are regulated under the provisions ofNMSA 1978, Sections 3-23-1 to -10 (1953, as amended through 2001), and NMSA 1978, Sections 3-27-1 to -9 (1953, as amended through 1994). Therefore, while the PRC has exclusive jurisdiction to regulate public utilities, it has no authority over utilities owned and operated by most municipalities. NMSA 1978, \u00a7 62-6-4(A) (2003) (\u201cThe [PRC] shall have general and exclusive power and jurisdiction to regulate and supervise every public utility . . . . Nothing in this section, however, shall be deemed to confer upon the commission power or jurisdiction to regulate or supervise the rates or service of any utility owned and operated by any municipal corporation ....\u201d).\nIf Las Cruces were subject to the PUA, the outcome would be clear. Section 62-9-1.1(A) describes the situation at hand and requires a specific remedy:\nNotwithstanding any other provision of the [PUA], or any provision of the Municipal Code, or any privilege granted under either act, if any municipality that has not elected to come within the terms of the [PUA] ... constructs or extends or proposes to construct or extend its water or sewer line or system or water pumping station or reservoir into a geographical area described in a [CCN] granted by the [PRC] to a public utility rendering the same type of service, the [PRC], on complaint of the public utility claiming to be injuriously affected thereby, shall, after giving notice to the municipality and affording the municipality an opportunity for a hearing with respect to the issue of whether its water or sewer line, plant or system actually intrudes or will intrude into the area certificated to the public utility, determine whether such intrusion has occurred or will occur. If the [PRC] determines such an intrusion has occurred or will occur, the municipality owning or operating the water or sewer utility shall cease and desist from making such construction or extension in the absence of written consent of the public utility involved and approval of the [PRC],\nThis language clearly describes resolution of disputes between public utilities and municipalities not otherwise subject to the PUA when a municipality invades a certificated area. However, this section still does not resolve the problem in the present case, since Subsection C provides that \u201c[f]or purposes of this section, \u2018municipality\u2019 means any municipality that has a population ofmore than two hundred thousand.\u201d Section 62-9-1.1(C). Thus, this section does not apply to Las Cruces. The Legislature expressed its clear intention to exclude smaller municipalities from the limits placed on larger municipalities that invade a certificated area.\nMoongate argues that despite the plain meaning of Section 62-9-1.1(C), the expression ofpolicy set forth in NMSA 1978, Section 62-3-2.1 (1991), requires this Court to hold that Las Cruces cannot invade Moongate\u2019s certificated area. Section 62-3-2.1(C) explains:\nA rational basis exists to prohibit intrusion ofmunicipal water or sewer facilities or service into areas in which a public utility furnishes regulated services until that municipality elects to come within the terms of the [PUA], in which event both systems will be brought into parity of treatment with respect to the [PRC]\u2019s independent jurisdiction and power to prevent unreasonable interference between competing plants, lines and systems. Without such controls as provided by Section 62-9-1.1 NMSA 1978, the declared policy of the [PUA], the provision of reasonable and proper utility services at fair, just and reasonable rates and the general welfare, business and industry of the state may be frustrated.\nWe agree with the Court of Appeals\u2019 discussion of this particular statutory language. See Moongate, 2012-NMCA-003, \u00b6\u00b6 18, 20-21. The Legislature expressed a desire to prohibit unreasonable municipal intrusion into territory that is already being served by public utilities, but it failed to enact any operative language, other than Section 62-9-1.1, to accomplish that goal. Because Section 62-9-1.1(C) explicitly excludes municipalities with a population of less than 200,000, we cannot construe either it or Section 62-3-2.1 as prohibiting Las Cruces from competing with Moongate in the certificated area at issue. Indeed, nothing in either the PUA or the statutory sections that regulate municipalities stops Las Cruces from providing service in the certificated area. Here, the area at issue was annexed by Las Cruces, which extended the corporate boundaries of the city, and it is therefore clear that Las Cruces may provide water in the certificated area. In fact, pursuant to Section 3-27-8(A), municipalities that operate a water system are authorized to furnish water even outside their corporate boundaries. Thus, contrary to Moongate\u2019s assertions, Las Cruces may provide utility service in the certificated area, even though the city has not elected to come under the provisions of the PUA.\nWe addressed an analogous situation in Morningstar, 120 N.M. at 581, 904 P.2d at 30, when a municipality extended its water services into territory that had previously been exclusively served by a water users\u2019 association. The water users\u2019 association argued that the municipality was encroaching on its service area and sought protection under the PUA by filing a complaint with the PRC. Id. at 582, 904 P.2d at 31. We held that the water users\u2019 association could not invoke the protections set forth in Section 62-9-1.1(A) because the municipality was not subject to the PUA under either exception. Morningstar, 120 N.M. at 588, 904 P.2d at37. Similarly, in this case, Las Cruces is not subject to the PUA, which means that Moongate cannot invoke any protections set forth in the provisions in the PUA, including those contained in Section 62-9-1.1. Morningstar, 120 N.M. at 588, 904 P.2d at 37. While the Legislature is clearly concerned about possible encroachment by municipalities into public utilities\u2019 service areas, it also made clear that the protections contained in the PUA do not cover municipalities except under very limited circumstances.\nMoongate has called our attention to the Court of Appeals\u2019 opinion in Fleming v. Town of Silver City, 1999-NMCA-149, \u00b6 6, 128 N.M. 295, 992 P.2d 308, which states in dicta that\na 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.\nThe Court cites Section 62-3-2.1 (C) in support of this statement of the law. However, the PUA is clear and unambiguous to the extent that it excludes municipalities from being subject to its provisions. Section 62-3-3(E). Because the plain meaning of the statute is clear, we cannot engage in further interpretation. As we explained previously, Section 62-3-2.1 is a statement of policy. The operative language is found in Section 62-9-1.1, and it does not apply to Las Cruces. When and if the Legislature chooses to bring smaller municipalities into the scope of Section 62-9-1.1, it will amend the statute to do so.\nIn short, Moongate\u2019s CCN grants it exclusive service rights only against utilities that are subject to the PRC\u2019s authority. Nothing in the PUA suggests that issuing a CCN should allow the PRC to restrict the actions of a municipal utility that would otherwise fall outside of its jurisdiction. We conclude that the PRC\u2019s authority extends only as far as its ability to regulate, and because it has no ability to regulate Las Cruces, a CCN issued by the PRC has no limiting effect on the city. See S. Union Gas Co. v. N.M. Pub. Util. Comm \u2019n, 1997-NMSC-056, \u00b6 7, 124 N.M. 176, 947 P.2d 133 (\u201c[T]he [PRC] cannot legitimately exercise jurisdiction over [a party] unless [that party] properly falls within the [PRC]\u2019s statutorily defined jurisdiction.\u201d). The Court of Appeals\u2019 dicta in Fleming is incorrect insofar as it suggests otherwise. Moongate\u2019s CCN does not prevent a municipality with a population of less than 200,000 from competing with Moongate in its certificated area. We therefore affirm the Court of Appeals to the extent that it concluded that \u201cMoongate\u2019s CCN did not grant [it] exclusive service rights against [Las Cruces\u2019] water utility.\u201d Moongate, 2012-NMCA-003, \u00b6 24.\nB. LOSS OF AN ABSTRACT RIGHT TO SERVE IS NOT A COMPENSABLE TAKING\nWe now address Moongate\u2019s regulatory taking claim. Even though Moongate\u2019s CCN does notprevent Las Cruces from providing service in the certificated area, this does not necessarily preclude the possibility that Las Cruces effectuated a taking in doing so. The district court granted summary judgment in favor of Moongate on the basis that its CCN gave it exclusive service rights as against Las Cruces. We disagree with the district court\u2019s conclusion and hold that a taking can occur, even in the absence of a public utility\u2019s exclusive right to furnish water under a CCN, if the CCN holder can prove that it had established infrastructure and was already serving customers in the area interfered with by the municipality.\nArticle II, Section 20 of the New Mexico Constitution and the Fifth Amendment to the United States Constitution forbid the taking of private property for public use without just compensation. See, e.g., Bd. of Educ. v. Thunder Mountain Water Co., 2007-NMSC-031, \u00b6 8, 141 N.M. 824, 161 P.3d 869 (explaining the takings protections set forth in the federal and state constitutions); State ex rel. State Highway Comm\u2019n v. Chavez, 77 N.M. 104, 106, 419 P.2d 759, 760 (1966) (explaining that the right of access is a property right that cannot be taken or damaged without just compensation). In evaluating takings claims under the New Mexico Constitution, \u201cwe turn to [both] federal [and state] cases for guidance, since \u2018[o]ur state Constitution provides similar protection\u2019 to the Takings Clause in Amendment V of the United States Constitution.\u201d Primetime Hospitality, Inc. v. City of Albuquerque, 2009-NMSC-011, \u00b6 19 n.1, 146 N.M. 1, 206 P.3d 112 (quoting Thunder Mountain, 2007-NMSC-031, \u00b6 8 (third alteration in original)).\nA regulatory taking, which Moongate asserts occurred here, occurs when the government regulates the use of land, but does not condemn it, i.e., take title to the property. Manning v. Mining & Minerals Div., 2006-NMSC-027 \u00b6 22, 140 N.M. 528, 144 P.3d 87. \u201cThe general rule is that a regulation which imposes a reasonable restriction on the use of private property will not constitute a \u2018taking\u2019 of that property if the regulation is (1) reasonably related to a proper purpose and (2) does not unreasonably deprive the property owner of all, or substantially all, of the beneficial use of his [or her] property.\u201d Temple Baptist Church, Inc. v. City of Albuquerque, 98 N.M. 138, 144-45, 646 P.2d 565, 571-72 (1982). If a regulatory taking has occurred, an action lies for inverse condemnation. See Townsend v. State ex rel. State Highway Dep\u2019t, 117 N.M. 302, 304, 871 P.2d 958, 960 (1994) (action in inverse condemnation is the exclusive remedy when property is taken or damaged for public use by a governmental entity that has failed to pay just compensation or initiate condemnation proceedings).\nMunicipalities have \u201cthe authority to condemn privately operated water . . . facilities for public use.\u201d United Water N.M., Inc. v. N.M. Pub. Util. Comm \u2018n, 1996-NMSC-007, \u00b6 23, 121 N.M. 272, 910 P.2d 906; Section 3-27-2(A), (G). We have required condemning authorities to pay just compensation to public utilities when taking tangible property, such as a water line extension and associated property. Thunder Mountain, 2007-NMSC-031, \u00b6\u00b6 3, 5. In this case, Moongate frames its takings claim as whether Las Cruces \u201ccould take Moongate\u2019s exclusive service rights\u201d without just compensation. At oral argument, we asked Moongate\u2019s counsel what property was being taken that required compensation. Moongate reiterated that the property requiring just compensation was its exclusive right to serve. Essentially, Moongate asks us to require compensation for the fair market value of the lost potential opportunity to serve.\nThe district court found that in at least some of the certificated area, \u201c[a]t most, Moongate lost only a few potential residential water customers as a result of the City\u2019s annexation . . . and agreement to provide water . . . utility service.\u201d Additionally, the district court found that \u201cMoongate had no infrastructure on any of the three tracts of land and no customers on any of the properties,\u201d and it \u201chad no ownership interest in any of the land[].\u201d The district court also found that \u201cMoongate had no physical assets in the areas in issue, and that no physical asset of any kind was taken by the City from Moongate.\u201d Further, the district court found that \u201c[i]t was undisputed that, absent significant infrastructure improvements, Moongate could not serve . . . the Dos Sue\u00f1os subdivision,\u201d and the developer had requested that Las Cruces provide utility services to the area. The district court also found that \u201cMoongate has not incurred, and will not incur, any costs to serve the subject subdivisions.\u201d Essentially, the district court found that any lost profits were speculative because they were based on a hypothetical future income stream.\nSince there can be no talcing of exclusive service rights if the rights are not exclusive as to the party that has allegedly taken them, and the district court\u2019s findings of fact indicate that Moongate had no tangible assets on the certificated area, the City has not engaged in a taking. If Moongate had proved that it had invested in production capacity to serve the area, built a plant or other infrastructure, and Las Cruces then took over service or began competing in the certificated area, this would be an entirely different issue, which might justify compensation under a stranded assets theory. Indeed, at oral argument, counsel for Las Cruces conceded that there would have been a taking if that had been the situation.\nWe have defined stranded assets or stranded costs \u201cas those costs that.. . utilities currently are permitted to recover through their rates but whose recovery may be impeded or prevented by the advent of competition in the industry.\u201d State ex rel. Sandel v. N.M. Pub. Util. Comm\u2019n, 1999-NMSC-019, \u00b6 7, 127 N.M. 272, 980 P.2d 55 (internal quotation marks and citation omitted); see also City of Corpus Christi v. Pub. Util. Comm\u2019n of Tex., 51 S.W.3d 231, 238 (Tex. 2001) (\u201c[Sjtranded costs are investments in or the cost of tangible assets\u201d that it is in the public interest for utilities to recover). For example, if Moongate had proven that Las Cruces\u2019 actions rendered tangible assets worthless, Moongate could have legitimately argued that its investment in those assets was compromised, and therefore it was entitled to compensation under a stranded assets theory. However, Moongate did not make that argument, and the district court\u2019s findings of fact and conclusions of law make it clear that Moongate failed to demonstrate any loss at all. Significantly, Moongate itself identifies the alleged \u201cexclusive service rights\u201d as the property that requires just compensation \u2014 it does not point to any tangible asset that has been affected by Las Cruces\u2019 actions. Therefore, we cannot conclude that Las Cruces has engaged in a taking, and we hold that in the absence of any proof of tangible loss \u2014 i.e., physical taking or stranded costs \u2014 a public utility is not entitled to just compensation when a municipality lawfully exercises its right to serve in the public utility\u2019s certificated area.\nMoongate cites case law from other jurisdictions to support the proposition that a municipality that invades a public utility\u2019s certificated area has taken property which requires just compensation. Although the authorities relied upon by Moongate are distinguishable, the reasoning and analyses in these cases were useful to this Court in reaching its conclusion. For example, in City of Jackson v. Creston Hills, Inc., 172 So. 2d 215, 217-18, 220 (Miss. 1965), the court held that the city of Jackson had engaged in a taking when it invaded certificated territory where a public utility had established infrastructure (\u201ctwo deep wells, two submersible pumps, two pressure tanks, water mains, service lines and other sundry property\u201d), id. at 217-18, and was already providing service to customers in the area. Notably, the court found error in the district court\u2019s decision to value the CCN separately for calculation of damages. Id. at 221-22. Another example is Delmarva Power & Light Co. v. City of Seaford, 575 A.2d 1089, 1102-03(Del. 1990), in which the Supreme Court of Delaware held that the city of Seaford could not take customer accounts from a public utility unless just compensation was paid. The municipality began to provide service to two commercial customers which the public utility had served up to that point. Id. at 1091. Like City of Jackson, Delmarva supports the proposition that a municipality engages in a taking when actual (rather than potential) customers or infrastructure is involved. See Delmarva, 575 A.2d at 1103; City of Jackson, 172 So. 2d at 218. These cases, however, do not support that a taking has occurred when a right to serve has been compromised and no infrastructure or customers were involved.\nCONCLUSION\nThe district court erred in granting summary judgment in favor of Moongate. Therefore, we affirm the Court of Appeals to the extent that it determined that Moongate\u2019s CCN does not guarantee exclusive service rights against Las Cruces. We also conclude that the loss of an abstract right to serve, without tangible loss, is not compensable as a taking. We remand to the district court to enter judgment for Las Cruces.\nIT IS SO ORDERED.\nEDWARD L. CH\u00c1VEZ, Justice\nWE CONCUR:\nPETRA JIMENEZ MAES, Chief Justice\nRICHARD C. BOSSON, Justice\nCHARLES W. DANIELS, Justice\nBARBARA J. VIGIL, Justice\nSee NMSA 1978, \u00a7 62-13-1 (1993) (defining the PUA).", "type": "majority", "author": "CH\u00c1VEZ, Justice." } ], "attorneys": [ "Tucker Law Firm, P.C. Steven L. Tucker Santa Fe, NM William A. Walker, Jr., P.C. William A. Walker, Jr. Las Cruces, NM for Petitioner", "Keleher & McLeod, P.A. W. Spencer Reid Thomas C. Bird Kurt Wihl S. Charles Archuleta Albuquerque, NM Marcia B. Driggers Las Cruces, NM for Respondent" ], "corrections": "", "head_matter": "IN THE SUPREME COURT OF THE STATE OF NEW MEXICO\nOpinion Number: 2013-NMSC-018\nFiling Date: May 9, 2013\nDocket No. 33,182\nMOONGATE WATER COMPANY, INC., a New Mexico Public Utility, Plaintiff-Petitioner, v. CITY OF LAS CRUCES, Defendant-Respondent.\nTucker Law Firm, P.C. Steven L. Tucker Santa Fe, NM William A. Walker, Jr., P.C. William A. Walker, Jr. Las Cruces, NM for Petitioner\nKeleher & McLeod, P.A. W. Spencer Reid Thomas C. Bird Kurt Wihl S. Charles Archuleta Albuquerque, NM Marcia B. Driggers Las Cruces, NM for Respondent" }, "file_name": "0117-01", "first_page_order": 133, "last_page_order": 141 }