{ "id": 4241657, "name": "TRI-STATE GENERATION AND TRANSMISSION ASSOCIATION, INC., Appellant, v. NEW MEXICO PUBLIC REGULATION COMMISSION and KIT CARSON ELECTRIC COOPERATIVE, INC., Appellees", "name_abbreviation": "Tri-State Generation & Transmission Ass'n v. New Mexico Public Regulation Commission", "decision_date": "2015-04-06", "docket_number": "Docket No. 34,182", "first_page": "635", "last_page": "646", "citations": [ { "type": "official", "cite": "2015-NMSC-013" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "98 N.M. 261", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582516 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/98/0261-01" ] }, { "cite": "1982-NMSC-060", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 23" } ], "opinion_index": 0 }, { "cite": "118 N.M. 500", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563456 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/118/0500-01" ] }, { "cite": "1994-NMSC-103", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0 }, { "cite": "2006-NMSC-034", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3671362 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 23, 29-31" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0077-01" ] }, { "cite": "103 N.M. 277", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711298 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/103/0277-01" ] }, { "cite": "1985-NMSC-084", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 3" } ], "opinion_index": 0 }, { "cite": "102 N.M. 409", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580189 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/102/0409-01" ] }, { "cite": "1985-NMSC-024", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6\u00b6 6, 9-10" } ], "opinion_index": 0 }, { "cite": "28 P.U.R 4th 20", "category": "reporters:specialty", "reporter": "P.U.R.4th", "weight": 2, "year": 1978, "pin_cites": [ { "page": "41" }, { "page": "40-41" } ], "opinion_index": 0 }, { "cite": "9 N.M. Reg. 1414", "category": "laws:admin_register", "reporter": "N.M. Reg.", "year": 1998, "opinion_index": 0 }, { "cite": "90 N.M. 325", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2874704 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0325-01" ] }, { "cite": "1977-NMSC-032", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6\u00b6 38, 41, 50" } ], "opinion_index": 0 }, { "cite": "1999-NMSC-016", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257693 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0254-01" ] }, { "cite": "95 N.M. 97", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575621 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/95/0097-01" ] }, { "cite": "1980-NMSC-120", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 3" } ], "opinion_index": 0 }, { "cite": "2010-NMSC-013", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4248331 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 61" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0021-01" ] }, { "cite": "74 N.M. 647", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2805186 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/74/0647-01" ] }, { "cite": "1964-NMSC-248", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0 }, { "cite": "76 N.M. 314", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8502041 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/76/0314-01" ] }, { "cite": "1966-NMSC-053", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6\u00b6 1, 11, 14" } ], "opinion_index": 0 }, { "cite": "120 N.M. 579", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558975 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/120/0579-01" ] }, { "cite": "1995-NMSC-062", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 0 }, { "cite": "16 Envtl. L. 39", "category": "journals:journal", "reporter": "Envtl. L.", "weight": 3, "year": 1985, "pin_cites": [ { "page": "45-47" }, { "parenthetical": "\"If three or more New Mexico member utilities file protests [with just cause], the [Commission shall suspend the rates . . . .\"" } ], "opinion_index": 0 }, { "cite": "108 N.M. 462", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592791 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/108/0462-01" ] }, { "cite": "1989-NMSC-033", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0 }, { "cite": "2006-NMSC-032", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3671055 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0006-01" ] }, { "cite": "2003-NMSC-028", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 77202 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0472-01" ] }, { "cite": "1998-NMSC-038", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827390 ], "weight": 6, "year": 1982, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0152-01" ] } ], "analysis": { "cardinality": 1244, "char_count": 36995, "ocr_confidence": 0.787, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14091246246402783 }, "sha256": "7a3f767b7972c1f193a22aa4a8bb2bcd8c6b8eb19b4beb063a079083e3ab1f23", "simhash": "1:84d70665d5789bae", "word_count": 5979 }, "last_updated": "2023-07-14T17:10:55.229683+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CHARLES W. DANIELS, Justice", "BARBARA J. VIGIL, Chief Justice", "PETRA JIMENEZ MAES, Justice", "RICHARD C. BOSSON, Justice", "EDWARD L. CH\u00c1VEZ, Justice" ], "parties": [ "TRI-STATE GENERATION AND TRANSMISSION ASSOCIATION, INC., Appellant, v. NEW MEXICO PUBLIC REGULATION COMMISSION and KIT CARSON ELECTRIC COOPERATIVE, INC., Appellees." ], "opinions": [ { "text": "OPINION\nDANIELS, Justice.\nIn this precedential case of first impression, we address a number of issues related to the New Mexico Public Regulation Commission\u2019s authority and procedures in regulating utility rates of a generation and transmission cooperative, which statutorily differ from the Commission\u2019s powers over the rates charged by public utilities. We vacate the order of the Commission related to its suspension of a cooperative\u2019s proposed rates and provide guidance for similar situations that may arise in the future.\nI. BACKGROUND\nAs a generation and transmission cooperative (G&T Coop) owned by forty-four distribution cooperatives that are each members of its board, Tri-State Generation and Transmission Association, Inc., sells electric power exclusively to its members in four states. To cover its costs, Tri-State charges rates in accordance with a revenue requirement and a rate design approved by the Tri-State board. In 2012, the Tri-State board approved a new revenue requirement and a new rate design to meet that revenue requirement for 2013 (the 2013 rate design) and to replace th\u00e9 rate design and revenue requirement in effect at that time (the old rate design).\nAs required by NMS A 1978, Section 62-6-4(D) (2003), Tri-State filed Advice Notice 15 (AN 15) informing the Commission of the 2013 rate design. For the first time since the 2000 enactment of Subsection (D) of Section 62-6-4, three of the twelve Tri-State New Mexico members (the Kit Carson, Continental Divide, and Springer Electric Cooperatives) protested the 2013 rate design, and the Commission opened Case No. 12-00375-UT (the 2013 rate case). The Commission found that the three protesting members had just cause under Section 62-6-4(D) for the Commission to suspend the 2013 rate design, and it set a hearing to consider whether the 2013 rate design was reasonable. One of the commissioners suggested that Tri-State could file a proposal for interim rates if it wished.\nWith the 2013 rate design suspended, the Tri-State board agreed to address its revenue requirement on an interim basis by billing the protesting members under the old rate design and the nonprotesting members under the 2013 rate design. Pursuant to Section 62-6-4(D), Tri-State filed Advice Notices 16, 17, and 18 (ANs 16, 17, and 18) with the Commission. According to the letter Tri-State attached to its advice notices, AN 16 applied the 2013 rate design contained in AN 15 to the nine nonprotesting members so that the nonprotesting members could take advantage of the 2013 rate design as soon as possible. Apparently, many of the nonprotesting members had already taken steps to implement the 2013 rate design. AN 17 sought to recover the portion of the 2013 revenue requirement attributable to the three protesting New Mexico members using the old rate design. AN 18 was an alternative to AN 17 that would allow two additional months, compared to AN 17, to recover the revenue required under AN 17 from the protesting members in case any of the three elected to waive the contractual ninety-day notice requirement Tri-State incurred by replacing the 2013 rate design with the old rate design.\nWhen the same members that protested AN 15 filed protests against ANs 16, 17, and 18, the Commission opened Case No. 13-0003 7-UT (the interim rate case) and issued an order on March 13, 2013, rejecting ANs 16,17, and 18 (the Order). The Order rejected a public hearing of AN 16, concluding that \u201cthe rates in question are already before a Hearing Examiner\u201d because AN 16 applied rates \u201cidentical\u201d to the rates pending in the 2013 rate case. The Order rejected ANs 17 and 18, stating that they \u201cwould result in what would be perceived as punishing the protestors.\u201d On \u201cseparate and independent grounds,\u201d the Order rejected ANs 16, 17, and 18 for the failure of Tri-State to satisfy the interim rate pleading burden imposed by a Commission regulation, 1.2.2.27 NMAC (Rule 27).\nSeveral months after the Commission issued the Order, Tri-State filed a notice of withdrawal from the 2013 rate case in order to file Advice Notice 19 (AN 19) informing the Commission of a rate increase to take effect as of January 1, 2014. The Commission stayed discovery and vacated the procedural schedule on the 2013 rate case, pending responses by the parties to Tri-State\u2019s notice ofwithdrawal. Tri-State appealed to this Court from the Order, arguing that the Commission exceeded its statutory authority and that the Order was arbitrary or contrary to law. This Court reviews appeals from the final orders of the Commission. See NMSA 1978, \u00a7 62-11-1 (1993). Appellee Kit Carson Electric Cooperative filed a motion to dismiss this appeal on two grounds: that the Order was not final and that the appeal was moot, issues we address in this opinion.\nII. DISCUSSION\nTri-State has the burden on appeal of showing that the Order is \u201cunreasonable\u201d or \u201cunlawful.\u201d NMSA 1978, \u00a7 62-11-4 (1965). This Court considers only the evidence on the record before the Commission, see NMSA 1978, \u00a7 62-11-3 (1982), and reviews in favor of the Order to determine whether it was supported by substantial evidence, was neither arbitrary nor capricious, and was within the Commission\u2019s scope of authority. See Plains Electric Generation & Transmission Coop. v. N.M. Pub. Util. Comm\u2019n, 1998-NMSC-038, \u00b6 7, 126 N.M. 152, 967 P.2d 827. This Court can either affirm or annul and vacate the Order but cannot modify it. See NMSA 1978, \u00a7 62-11-5 (1982).\nSection 62-6-4(D) of the Public Utility Act (PUA) is the only statutory provision that grants the Commission jurisdiction over G&T Coops like Tri-State. Section 62-6-4(D) requires that a G&T Coop file its proposed New Mexico rates with the Commission in the form of an advice notice and serve its member utilities. See id. If at least three New Mexico member utilities file protests with \u201cjust cause,\u201d the Commission \u201cshall suspend the rates, conduct a hearing concerning reasonableness of the proposed rates and establish reasonable rates.\u201d Id. Section 62-6-4(D) further defines the requirements of a protest. Id.\nOnce the Commission\u2019s jurisdiction and rate-making powers are invokedunder Section 62-6-4(D), as in this case, the Commission has plenary authority to set the utility\u2019s rates. City of Albuquerque v. N.M. Pub. Regulation Comm\u2019n, 2003-NMSC-028, \u00b6 8, 134 N.M. 472, 79 P.3d 297. And this Court defers to the \u201crelatively broad policy-making authority\u201d that the Legislature delegates to the Commission unless the Commission\u2019s .interpretation of its statutory authority is \u201cunreasonable.\u201d Do\u00f1a Ana Mut. Domestic Water Consumers Ass\u2019n v. N.M. Pub. Regulation Comm'n, 2006-NMSC-032, \u00b6 17, 140 N.M. 6, 139 P.3d 166.\n\u201cWhen reviewing statutes this [CJourt will read all relevant provisions together in order to determine legislative intent.\u201d Otero Cnty. Electric Coop. v. N.M. Pub. Serv. Comm\u2019n, 1989-NMSC-033, \u00b6 9, 108 N.M. 462, 774 P.2d 1050. \u201cIn reviewing utility regulations as applied to rate cases, this [Cjourt has interpreted the statutory language broadly\u201d consistent with the considerable discretion with which the Commission is vested to determine whether rates are just and reasonable. Id.\nA. Advice Notices 17 and 18 Did Not Unlawfully Discriminate Among TriState Member Cooperatives\nThe Order rejected ANs 17 and 18 because approving them \u201cwould result in what would be perceived as punishing the protestors.\u201d The Commission concluded that ANs 17 and 18 were discriminatory as a matter of law because, as it argues on appeal, \u201c[t]he Legislature has prohibited discriminatory treatment of ratepayers [in] Section 62-8-6.\u201d The Commission asks us to affirm its Order denying Tri-State\u2019s interim rates because Tri-State cited no decision from this Court or the Commission supporting TriState\u2019s method of treating protestors and nonprotestors differently.\nThe language of Section 62-8-6, however, expressly applies only to public utilities and makes no reference at all to G&T Coops.\nNo public utility shall, as to rates or services, make or grant any unreasonable preference or advantage to any corporation or person within any classification or subject any corporation or person within any classification to any unreasonable prejudice or disadvantage.\nId. The PUA is explicit in tailoring the Commission\u2019s authority over the rates of different kinds of utilities depending on whether a utility is, for example, a \u201cpublic utility,\u201d see \u00a7 62-6-4(A) (defining the power and jurisdiction of the Commission over the rates of public utilities), a \u201crural electric cooperative,\u201d see \u00a7 62-8-7(G) (same for rural electric cooperatives), or a \u201cgeneration and transmission cooperative,\u201d see \u00a7 62-6-4(D) (same for G&T Coops). We find no support for the proposition that Section 62-8-6 is the source of Commission authority to disapprove the rates of a G&T Coop. Instead, Section 62-6-4(D) gives the Commission the authority to determine the reasonableness of the rates of a G&T Coop after at least three of its members file protests that the Commission determines have just cause.\nThere are strong indications throughout the PUA that the Legislature intended the Commission\u2019s powers over a G&T Coop to be more limited than its powers over a public utility. A public utility sells power to the general public, but a G&T Coop sells power exclusively to other cooperatives that are its members. Compare \u00a7 62-6-4(E) (\u201c\u2018[Generation and transmission cooperative\u2019 means a person with generation or transmission facilities either organized as a rural electric cooperative ... or organized in another state and providing sales of electric power to member cooperatives in this state.\u201d (emphasis added)), with \u00a7 62-3-3(G)(l) (\u201c\u2018[Pjublic utility\u2019 or \u2018utility\u2019 means every person not engaged solely in interstate business . . . that may own, operate, lease or control... any . . . facility for the generation, transmission or distribution, sale or furnishing to or for the public of electricity . . . .\u201d (emphasis added)). The ownership and organization of a rural electric cooperative or a G&T Coop differs from that of a public utility. Compare NMSA 1978, \u00a7 62-15-2 (1998) (stating that rural electric cooperatives are organized on a nonprofit or cooperative basis under NMSA 1978, Sections 62-15-1 to -37 (1939, as amended through 2014), \u201cfor the primary purpose of supplying electric power [to] . . . and extending the use of electricity in rural areas\u201d), and \u00a7 62-6-4(E) (stating that a G&T Coop may be organized as a rural electric cooperative), with \u00a7 62-3-2(A)(3) (describing public utilities as \u201cinvestor-owned\u201d and \u201cprofit motivated\u201d). See also Richard P. Keck, Reevaluating the Rural Electrification Administration: A New Deal for the Taxpayer, 16 Envtl. L. 39, 45-47 (1985) (describing the history of the federal Rural Electrification Act and \u25a0 electric cooperatives and explaining how rural electric cooperatives and generation and transmission cooperatives were born in the late 1930s as a result of that congressional enactment to incentivize the electrification of rural America by authorizing low-interest loans for generation and transmission facilities as well as for distribution facilities).\nThe PUA limits the Commission\u2019s power and jurisdiction over cooperatives as compared to public utilities. The Commission has \u201cgeneral and exclusive power and jurisdiction to regulate and supervise every public utility in respect to its rates and service regulations ....\u201d Section 62-6-4(A). A public utility cannot change its rates without first obtaining the Commission\u2019s approval. See \u00a7 62-8-7(A)-(F). When a public utility requests a rate change, the Commission \u201cmay\u201d conduct a hearing concerning the reasonableness of the rates; and the proposed rates are suspended until the Commission determines reasonable rates. See \u00a7 62-8-7(C). At any hearing involving an increase in rates, the public utility carries the burden of proving that the increase \u201cis just and reasonable.\u201d Section 62-8-7(A).\nIn contrast, the Commission\u2019s jurisdiction over a rural electric cooperative or a G&T Coop is not general and exclusive but instead must be triggered by protests filed by a prescribed number of members before the Commission has any power over proposed rates. See \u00a7 62-6-4(A) (excluding the rates of G&T Coops from the general and exclusive power of the Commission to regulate the rates of public utilities); \u00a7 62-6-4(D) (setting forth the requirements of'the protests that could cause the Commission to review the rates submitted by a G&T Coop). The rates of a rural electric cooperative become effective \u201cas proposed\u201d except \u201c[u]pon the filing with the [Cjommission of a protest setting forth grounds for review of the proposed rates\u201d by the prescribed portion of customers with just cause. Section 62-8-7(G). Although Section 62-6-4(D) does not expressly state that the rates of a G&T Coop are effective as proposed, it specifically allows the Commission to suspend the rates submitted by a G&T Coop only when the specified number of protests with just cause have been filed. See id. (\u201cIf three or more New Mexico member utilities file protests [with just cause], the [Commission shall suspend the rates . . . .\u201d).\nThe Legislature directed that rural electric cooperatives are to be regulated in a \u201climited\u201d manner because they are \u201csubstantially different\u201d from public utilities. Section 62-3'-2(A)(3). Consumers have no control over the rates of investor-owned public utilities, id., and accordingly the PUA seeks a balanced regulation that addresses \u201cthe public interest, the interest of consumers and the interest of investors.\u201d Section 62-3-1 (B). In contrast, the interests of the purchasers of electric power from a G&T Coop, who own the G&T Coop, are already addressed democratically through the owner-membership of the G&T Coop board. See \u00a7 62-3-2(A)(2)-(3) (stating that members of cooperatives have \u201cdirect control over the cooperative\u2019s rates through an elected board of trustees\u201d); see also Morningstar Water Users Ass\u2019n v. N.M. Pub. Util. Comm'n, 1995-NMSC-062, \u00b6 20, 120 N.M. 579, 904 P.2d 28 (\u201cThe PUA attempts to distinguish on the one hand utilities that are required to serve any and all members of-the public who request [utility] service and on the other hand utilities that operate more like a private coalition or club that chooses to limit its services only to its own select members.\u201d).\nThe Legislature expressly recognized that there is no rational basis for treating rural electric cooperatives and public utilities the same as to their rates because a rural electric cooperative is not investor-owned. Section 62-3-2(A)(3) (\u201cExperience has shown that a rational basis exists to provide procedures for setting rates of rural electric cooperatives different from and more limited than those for settingrates ofinvestor-ownedutilities,\u201d). The Legislature\u2019s language in Section 62-3-2(A)(3) echoes this Court\u2019s holding that there is not a rational basis for treating rural electric cooperatives and public utilities the same under the PUA \u2014 a rationale which also applies to G&T Coops. See Cmty. Pub. Serv. Co. v. N.M. Pub. Serv. Comm\u2019n, 1966-NMSC-053, \u00b6\u00b6 1, 11, 14, 76 N.M. 314, 414 P.2d 675 (holding that a 1961 amendment to include rural electric cooperatives as public utilities under the PUA denied equal protection to public utilities because there was no rational basis for giving rural electric cooperatives PUA advantages without subjecting them to full PUA regulation and the requirement to render service to the general public as prescribed for other electric utilities under the PUA); see also Edington v. N.M. Pub. Serv. Comm 1964-NMSC-248, \u00b6 6, 74 N.M. 647, 397 P.2d 300 (discussing history leading to the 1961 inclusion of rural electric cooperatives as public utilities under the PUA).\nThe language of Section 62-8-6 restricting its application to a public utility is significant because a G&T Coop is not investor-owned; the Legislature expressly limited the Commission\u2019s powers over utilities that are not investor-owned; and the Commission\u2019s only authority over G&T Coops comes from Section 62-6-4, Subsection (D), which the Legislature enacted in its 2000 amendment of Section 62-6-4 without altering the language that restricts application of Section 62-8-6 to public utilities.\nAlthough Section 62-8-6 makes no textual reference to a G&T Coop, its prohibition against \u201cunreasonable differences as to rates\u201d established by a public utility is a prohibition that applies to G&T Coops as well because Section 62-6-4(D) explicitly authorizes the Commission to \u201cconduct a hearing concerning reasonableness of the [G&T Coop] proposed rates and establish reasonable rates.\u201d Obviously, rates incorporating unreasonable differences or discriminations, the focus of Section 62-8-6, would be unreasonable rates under Section 62-6-4(D).\nNeither statute prohibits reasonable variations in rates. See \u00a7 62-8-6 (stating that a public utility shall not grant an \u201cunreasonable preference\u201d or cause an \u201cunreasonable prejudice\u201d in its rate-making); Albuquerque Bernalillo Cnty. Water Util. Auth. v. N.M. Pub. Regulation Comm\u2019n, 2010-NMSC-013, \u00b6 61, 148 N.M. 21, 229 P.3d 494 (\u201c[Section 62-8-6] does not prohibit variations in rates, nor does it require \u2018equal service.\u2019 Rather, it prohibits \u2018unreasonable differences\u2019 in rates of service between localities. Section 62-8-6 thus forbids arbitrary variations in rates, while permitting variations due to differing costs of service to different areas.\u201d (internal quotation marks and citation omitted)).\nAlthough no prior appellate decision has construed Section 62-6-4(D), there is absolutely nothing in the statute or its legislative history to indicate that the Legislature intended to impose a flat ban on reasonable variations in rates. While it is possible that a majority of board members of a cooperative could engage in unreasonable discrimination against minority members and thus engage in unreasonable rate-making, there is no evidence in this record to support a conclusion that Tri-State\u2019s board unreasonably discriminated against its minority members.\nSection 62-6-4(D) compels the Commission to look at the additional facts surrounding the reasonableness of Tri-State\u2019s interim rates, which is the purpose of the required hearing: to give a voice to the nonprotesting members so that the Commission can be fully informed of all members\u2019 interests and concerns. As Tri-State points out on appeal, \u201cBecause Tri-State is obligated to recover its revenue requirement from its Members, [the Commission\u2019s suspension of the 2013 rate design] left an estimated shortfall of over $14 million for New Mexico which would necessarily have to be borne in some fashion by all Members.\u201d Tri-State\u2019s interim rates were designed to be fair to all of its members because \u201cthe Protestors would pay under the old rate design (which they asked for), and the non-Protestors would pay under the new rate design (which they did not protest).\u201d\nWe conclude that the Order\u2019s rejection of ANs 17 and 18 was improper because as a matter of law the interim rates they prescribe are not unreasonably discriminatory and because there is no evidence otherwise of unreasonable discrimination.\nB. Rejecting the Advice Notices Without a Hearing Violated Section 62-6-4(D)\nAlthough the Commission\u2019s regulations allow it great latitude in managing its own proceedings, the Commission cannot apply its regulations contrary to Section 62-6-4. See, e.g., Jones v. Emp\u2019t Servs. Div. of Human Servs. Dep\u2019t, 1980-NMSC-120, \u00b6 3, 95 N.M. 97, 619 P.2d 542 (\u201cIf there is a conflict or inconsistency between statutes and regulations promulgated by an agency, the language of the statutes shall prevail. An agency by regulation cannot overrule a specific statute.\u201d).\nWhen the Commission determines just cause in at least three protests of any G&T Coop advice notice, Section 62-6-4(D) requires a Commission hearing on the reasonableness of the protested rates without distinguishing between interim and permanent rates and referring only to \u201crates\u201d generally. The PUA defines \u201crate\u201d broadly, stating that a \u201c\u2018rate\u2019 means every rate, tariff, charge or other compensation for utility service rendered or to be rendered by a utility.\u201d Section 62-3-3(H). Absent further legislative clarification, we take this to mean that the \u201crate\u201d referred to in Section 62-6-4(D) includes both interim and permanent rates because, as we will discuss, a G&T Coop does not request interim rate relief \u2014 it only needs to file new rates with the Commission pursuant to Section 62-6-4(D). We address the Order\u2019s two grounds of rejection separately.\n1. Rejection of Advice Notice 16 Without a Hearing Based on a Prior Suspension of the Same Rates Violated Section 62-6-4(D)\nThe Order concluded that the AN 16 rate prescription for nonprotesting members was \u201cidentical\u201d to the suspended AN 15 rate prescription. The Order rejected AN 16 pursuant to the regulation that requires a utility to comply with Commission orders, see 17.1.210.11(H) NMAC (stating that the Commission may reject rates, rules, or forms that \u201care not in substantial compliance with Commission . . . orders\u201d), \u201cbecause when the Commission suspended the rates [filed under AN 15], it did not limit the suspension to only those rates to be charged to the protesting [members].\u201d On appeal, the Commission states, \u201cOrdinarily, a rate either goes into effect or it is suspended \u2014 not in part, but in whole, so that the entirety of the rate and its effects on various customer classes can be evaluated before it is made permanent.\u201d\nWe recognize that AN 16 tests the Commission\u2019s power to enforce its prior order suspending AN 15 in the 2013 rate case. See NMSA 1978, \u00a7 8-8-4(B)(5) (1998) (\u201cThe [Commission may . . . take administrative action by issuing orders not inconsistent with law to assure implementation of and compliance with the provisions of law for which the [C]ommission is responsible and to enforce those orders by appropriate administrative action and court proceedings.\u201d). Kit Carson describes TriState\u2019s request for interim rates as an attempt by Tri-State to charge rates on a temporary basis that were previously suspended in the 2013 rate case. We must assume that the 2013 rate case is still pending because Tri-State filed a withdrawal in the 2013 rate case and there is no indication in the record that such a withdrawal has been granted. See 17.1.210.11 (E) NMAC (\u201c[A] filing which has been made with the Commission may not be withdrawn or changed in any manner without the Commission\u2019s approval. Such approval may be granted by the Commission in its discretion.\u201d). The Order did not indicate that the Commission intended to consolidate a hearing of the AN 16 interim rate with the hearing of the permanent rate in the 2013 rate case or that AN 16 would be heard at a later time. Because Section 62-6-4(D) applies to both permanent and interim rates, we conclude that this section requires the Commission to grant a hearing of AN 16. The Order was contrary to Section 62-6-4(D) in its rejection of AN 16 without a hearing.\n2. Rejection of Advice Notices 16,17, and 18 Without a Hearing Based on Alleged Rule 27 Noncompliance Violated Section 62-6-4(D)\nThe Order rejected ANs 16, 17, and 18 and, having concluded that the advice notices lacked the evidentiary support required by the Commission\u2019s regulation establishing that a utility has the burden of supporting its interim rate relief request with evidence, declined to hear them pursuant to Rule 27(A)-(D). Rule 27(A) requires that pleadings for interim relief \u201cmust allege such extraordinary facts of immediate and irreparable injury as would justify the [Cjommission\u2019s exercise of discretion by granting interim relief prior to a final decision,\u201d Rule 27(B) prescribes that the pleading \u201cbe accompanied by affidavit or testimony in support of the request,\u201d and Rule 27(C) specifies notice requirements. Rule 27(D) authorizes the Commission to forego a public hearing on \u201crequests for interim relief other than interim rate relief.\u201d Tri-State referred to interim rates in its letter to the Commission describing ANs 16, 17, and 18, and on appeal Tri-State describes these advice notices as the \u201crates ... that would apply only from March to December 2013\u201d pursuant to Section 62-6-4(D) and not Rule 27.\nWe recognize that the Commission\u2019s rules of procedure, of which Rule 27 is a part, apply \u201cto all utility division . . . proceedings other thanrulemaking[].\u201d 1.2.2.2 NMAC. The Commission\u2019s rate-making authority over public utilities \u201ccandes with it the incidental and implied power to grant interim rate relief, if the facts warrant\u201d such relief. U.S. West Commc\u2019ns v. N.M. State Corp. Comm\u2019n, 1999-NMSC-016, \u00b6 16, 127 N.M. 254, 980 P.2d 37 (internal quotation marks and citation omitted). If the Commission suspends the proposed rate change of a public utility for a period of time before the Commission determines the rate, interim rate relief prevents, effectively, the Commission\u2019s taking of the property of the public utility without just compensation. See Mountain States Tel. & Tel. Co. v. N.M. State Corp. Comm\u2019n, 1977-NMSC-032, \u00b6\u00b6 38, 41, 50, 90 N.M. 325, 563 P.2d 588 (explaining that the Commission may approve interim rate relief that applies until it decides the permanent rates to prevent an unconstitutional confiscation of property without due process of law).\nThe Commission suggests that the Legislature was aware of the Commission\u2019s powers over the interim rates of utilities and must have intended Rule 27 to \u201cfill[] that gap\u201d in Section 62-6-4(D) as to interim rates. The Rule 27 predecessor governing interim rate relief, 17.1.2.30 NMAC (12/31/1998), was in existence before 2000 when Subsection (D) of Section 62-6-4 was enacted. See 9 N.M. Reg. 1414 (Dec. 31, 1998). Caselaw imposing the interim rate relief burden existed even earlier than the Rule 27 predecessor. See, e.g., In re Gas Co. of N.M., 28 P.U.R 4th 20, 41 (1978) (\u201cA utility seeking the exercise of this discretion has a heavy burden to bear.... The company must demonstrate that the granting of interim rate relief prior to a rate design determination will not unduly burden its customers and if not granted will result in an extreme hardship to the company.\u201d).\nThe Commission overlooks the fact that interim rate relief is a form of relief from the rate-making powers the Commission exercises over public utilities and not cooperatives. See, e.g., id. at 40-41 (stating that the legal basis of interim rate relief comes from the constitutional duty of the Commission to fix interim rates that would minimize the confiscation of the public utility\u2019s property but that the Commission has the discretion to consider whether the interim rate relief proposal is appropriate in the case at hand and to impose the burden on the public utility to show that the rate proposal is appropriate); Mountain States Tel. & Tel. Co. v. N.M. State Corp. Comm\u2019n, 1985-NMSC-024, \u00b6\u00b6 6, 9-10, 102 N.M. 409, 696 P.2d 1002 (stating that the United States Supreme Court set the standard for determining when a confiscation of a public utility company\u2019s property has occurred and affirming the Commission\u2019s denial of a public utility request for interim rate relief because the record did not adequately support the public utility\u2019s confiscation claim).\nInterim rate reliefis a conceptunique to public utilities because the only way a public utility can change its rates is by Commission approval. See \u00a7 62-6-4(A); \u00a7 62-8-7(A)-(F). A public utility subject to confiscation of its property without due process may be justified in seeking the Commission\u2019s approval of its request for interim rate relief. In contrast, a G&T Coop does not need to seek the Commission\u2019s approval for interim rates because a G&T Coop board can agree to a new rate and file that new rate pursuant to Section 62-6-4(D) without requesting interim rate relief under Rule 27. The Legislature would not have necessarily 'considered confiscation implications of the interim rate relief pleading burden as part of the Commission\u2019s authority over G&T Coops because a G&T Coop does not seek such interim rate relief but instead notifies the Commission of new rates as Section 62-6-4(D) prescribes.\nOur determination here that the Legislature did not intend for the Commission to have rate-making powers over the rates o.f G&T Coops independent of Section 62-6-4(D) delineates the roles of the statute and Rule 27 in proposals for interim rates and requests for interim rate relief. Section 62-6-4(D) is the only PUA source of the Commission\u2019s authority over the rates of a G&T Coop, and the broad references to \u201crates\u201d in Section 62-6-4(D) do not distinguish between interim and permanent rates. Rule 27(A)-(C) imposes a pleading burden on a utility requesting interim rate relief while G&T Coops under Section 62-6-4(D) do not seek administrative action to set rates in the first place. Unlike public utilities under Section 62-8-7 that must first propose a rate and then obtain the Commission\u2019s approval before the rate is effective, the rates of G&T Coops, like rural electric cooperatives, are effective immediately unless suspended under Section 62-6-4(D). If the Commission suspends a G&T rate, interim or not, then the Commission under Section 62-6-4(D) must \u201cconduct a hearing concerning the reasonableness\u201d of the rate; while Rule 27(D) allows the Commission to \u201cact[] upon [a request for interim relief] with or without public hearing.\u201d Rule 27(A)-(C) imposes the pleading burden on the utility seeking interim rate relief, see also \u00a7 62-8-7(A) (imposing a pleading burden on a public utility that seeks the Commission\u2019s approval of its rate), while Section 62-6-4(D) does not require a G&T Coop to carry any burden of proof or pleading in order to set its rates.\nTo the extent that Rule 27 requires a utility to file a request for interim relief as a \u201ccomplaint, petition, application, or other pleading\u201d with the Commission, Rule 27 is applicable generally; and ANs 16, 17, and 18 are Tri-State\u2019s pleadings for interim rates. But Section 62-6-4(D) alone, and not Rule 27, dictates the Commission\u2019s authority and its obligations in reviewing any G&T Coop rate \u201cfiled in the form of an advice notice,\u201d including ANs 16, 17, and 18. Section 62-6-4(D) authorizes the Commission\u2019s review of the \u201creasonableness\u201d of a rate \u2014 interim or otherwise \u2014 only when the Commission determines, as the Order asserts it did in this case, that at least three G&T Coop members have protested the rate in a showing of \u201cjust cause ... for review.\u201d Tri-State incurred no pleading burden because Section 62-6-4(D) imposes a burden on each protesting member to state grounds for its allegation that \u201cthe proposed rates are unreasonable,\u201d specify the relief it requests, describe its efforts to exhaust remedies for resolution of its dispute of the democratically determined rate, and provide an authorization of the member\u2019s protest from the G&T Coop board.\nHaving determined the required showing of \u201cjust cause,\u201d the Commission was obligated by Section 64-6-4(D) to \u201cconduct a hearing concerning reasonableness\u201d of the rates specified in ANs 16, 17, and 18. The Orderwas contrary to Section 62-6-4(D) when it rejected ANs 16, 17, and 18 without a hearing.\nC. We Reject Kit Carson\u2019s Mootness Claim and Deny Its Motion to Dismiss the Order\nKit Carson moved to dismiss TriState\u2019s appeal of the Order on grounds that the Order was not final and the issues were moot. We write to clarify for future cases the reasons why we did not dismiss this appeal. We recognize that the interim rates are to some extent \u201cidentical\u201d to a rate that was already before the Commission and that this bears on whether the Order is final for appeal. And if issues of the rates in ANs 16, 17, or 18 are pending in another proceeding before the Commission, review by this Court would not be appropriate. See \u00a7 62-11-1 (stating that only \u201cfinal\u201d orders of the Commission can be appealed to this Court); B.L. Goldberg & Assocs., Inc. v. Uptown, Inc., 1985-NMSC-084, \u00b6 3, 103 N.M. 277, 705 P.2d 683 (\u201cFor purposes of appeal, an order or judgment is not considered final unless all issues of law and fact have been determined and the case disposed of. . . to the fullest extent possible.\u201d). However, we deny the motion to dismiss because the Commission rejected Tri-State\u2019s interim rate application and bypassed the hearing requirements of Section 62-6-4(D) when it determined that ANs 16, 17, and 18 failed to meet the Commission\u2019s Rule 27 pleading burden for interim rates. The Commission later denied Tri-State\u2019s motion for a rehearing of the interim rate case, stating that \u201c[tjhis Docket is closed.\u201d The Commission, by its own words, made a final determination that the case for Tri-State\u2019s interim rates would not be heard because Tri-State\u2019s advice notices did not satisfy the burden imposed by the Commission\u2019s regulations.\nIt is also the repetitive nature of issues such as those in this case that compels us to deny the motion to dismiss this appeal based on mootness. See Cobb v. State Canvassing Bd., 2006-NMSC-034, \u00b6\u00b6 23, 29-31, 140 N.M. 77, 140 P.3d 498 (holding that we may review moot cases that either (1) present issues of substantial public interest or (2) are capable of repetition yet evade review); Howell v. Heim, 1994-NMSC-103, \u00b6 7, 118 N.M. 500, 882 P.2d 541 (affirming a state agency\u2019s authority to promulgate a regulation during a finite-term budgetary crisis- \u2014 even after the crisis in question had passed \u2014 because the appearance of similar issues in such time-limited circumstances is subject to repetition); State ex rel. N.M. Press Ass\u2019n v. Kaufman, 1982-NMSC-060, \u00b6 23, 98 N.M. 261, 648 P.2d 300 (addressing moot issues regarding the right of the media to cover a trial, which concluded before the appellate review of the denial of media access, because similar media access questions would likely rise again in future trials). Tri-State\u2019s briefing in this Court represents that it attempted to withdraw the rate design in the 2013 rate case in order to revise rates for 2014, pursuant to AN 19, because it was clear to Tri-State that the Commission \u201cwould not permit the 2013 rates to be effective in New Mexico before Tri-State would need to file a new rate to be effective in 2014.\u201d Tri-State reported in an October 11, 2013, pleading filed for this appeal that four Tri-State New Mexico members had already filed protests concerning AN 19. This gives us reason to believe that this dispute is repetitive and requires resolution for future guidance in similar situations. The suspension of rates in this case forced Tri-State to set other rates even before a resolution in the suspended-rate case. The Commission could repeatedly characterize Tri-State\u2019s subsequent advice notices as requests for interim rate relief and reject them for failure to meet the pleading burden for interim rate relief requests in Rule 27(A)-(C) until this Court clarifies the Commission\u2019s authority over the rates of G&T Coops. Accordingly, we conclude that the issues in this case are not moot, and we deny Kit Carson\u2019s motion to dismiss.\nIII. CONCLUSION\nW-e vacate the Commission\u2019s March 13, 2013, Order in Case No. 13-00037-UT and remand for any proceedings that may be necessary in order to comply with this opinion.\nIT IS SO ORDERED.\nCHARLES W. DANIELS, Justice\nWE CONCUR:\nBARBARA J. VIGIL, Chief Justice\nPETRA JIMENEZ MAES, Justice\nRICHARD C. BOSSON, Justice\nEDWARD L. CH\u00c1VEZ, Justice\nThe entire PUA is sot forth in NMSA 1978, \u00a7\u00a7 62-1-1 to -7 (1909, as amended through 1993), 62-2-1 to -22 (1884, as amended through 2013), 62-3-1 to -5 (1967, as amended through 2009), 62-4-1 (1998), 62-6-4 to -28 (1941, as amended through 2009), 62-8-1 to -11 (1941, as amended through 2011), 62-9-1 to -7 (1941, as amended through 2005), 62-10-1 to -16 (1941, as amended through 1998), 62-11-1 to -6 (1941, as amended through 1993), 62-12-1 to-7 (1941, as amended through 1993), and 62-13-1 to -15 (1941, as amended through 2010); see \u00a7 62-13-1 (specifying the range of articles in Chapter 62 that comprised the PUA in 1993).", "type": "majority", "author": "DANIELS, Justice." } ], "attorneys": [ "Modrall, Sperling, Roehl, Harris & Sisk, P.A. John R. Cooney Joan E. Drake Emil John Kiehne Albuquerque, NM Lewis Roca Rothgerber LLP Thomas J. Dougherty Denver, CO Sherman & Howard, LLC Robert E. Youle Brian G. Eberle Denver, CO for Appellant", "New Mexico Public Regulation Commission Richard L. Blumenfeld Santa Fe, NM for Appellee New Mexico Public Regulation Commission", "Cuddy & McCarthy, LLP -Charles V. Garcia Albuquerque, NM Cuddy & McCarthy, LLP Arturo L. Jaramillo Patrick T. Ortiz Santa Fe, NM for Appellee Kit Carson Electric Cooperative, Inc." ], "corrections": "", "head_matter": "IN THE SUPREME COURT OF THE STATE OF NEW MEXICO\nOpinion Number: 2015-NMSC-013\nFiling Date: April 6, 2015\nDocket No. 34,182\nTRI-STATE GENERATION AND TRANSMISSION ASSOCIATION, INC., Appellant, v. NEW MEXICO PUBLIC REGULATION COMMISSION and KIT CARSON ELECTRIC COOPERATIVE, INC., Appellees.\nModrall, Sperling, Roehl, Harris & Sisk, P.A. John R. Cooney Joan E. Drake Emil John Kiehne Albuquerque, NM Lewis Roca Rothgerber LLP Thomas J. Dougherty Denver, CO Sherman & Howard, LLC Robert E. Youle Brian G. Eberle Denver, CO for Appellant\nNew Mexico Public Regulation Commission Richard L. Blumenfeld Santa Fe, NM for Appellee New Mexico Public Regulation Commission\nCuddy & McCarthy, LLP -Charles V. Garcia Albuquerque, NM Cuddy & McCarthy, LLP Arturo L. Jaramillo Patrick T. Ortiz Santa Fe, NM for Appellee Kit Carson Electric Cooperative, Inc." }, "file_name": "0635-01", "first_page_order": 651, "last_page_order": 662 }