TRI-STATE GENERATION AND TRANSMISSION ASSOCIATION, INC., a Colorado nonprofit cooperative corporation, Plaintiff - Appellee,
NEW MEXICO PUBLIC REGULATION COMMISSION, a New Mexico Agency, and its members; COMMISSIONER PATRICK H. LYONS; COMMISSIONER THERESA BECENTI-AGUILAR; COMMISSIONER BEN L. HALL; COMMISSIONER VALERIE ESPINOZA; COMMISSIONER KAREN L. MONTOYA, acting in their official capacities, Defendants. KIT CARSON ELECTRIC COOPERATIVE, INC., Movant - Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. (D.C. No. 1:13-CV-00085-KG-LAM).
Charles V. Garcia of Cuddy & McCarthy, L.L.P., Albuquerque, New Mexico, (Arturo L. Jaramillo, and Young-Jun Roh of Cuddy & McCarthy, L.L.P., Santa Fe, New Mexico, on the briefs), for Movant - Appellant.
John R. Cooney, (Earl E. DeBrine, Jr., and Joan E. Drake of Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, New Mexico; Robert E. Youle and Brian G. Eberle of Sherman & Howard, L.L.C., Denver, Colorado, on the brief), for Plaintiff - Appellee.
Before KELLY, PHILLIPS, and MORITZ, Circuit Judges.
KELLY, Circuit Judge.
Movant-Appellant Kit Carson Electric Cooperative, Inc. (KCEC) appeals from the district court's denial of its motion seeking intervention as of right or permissive intervention in a pending case. Tri-State Generation & Transmission Ass'n v. N.M. Pub. Regulation Comm'n, Civ. No. 13-00085 KG/LAM, (D.N.M. Aug. 18, 2014). Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.
Tri-State Generation and Transmission Association, Inc. (Tri-State), a Colorado non-profit regional cooperative that provides wholesale electric power, filed suit against the New Mexico Public Regulation Commission (NMPRC) seeking declaratory and injunctive relief under 42 U.S.C. § 1983. Tri-State argued that the NMPRC's exercise of jurisdiction and suspension of Tri-State's wholesale electric rates in New Mexico violated the Commerce Clause of the United States Constitution.
Briefly, Tri-State is a regional generation and transmission (G& T) cooperative that provides wholesale electric power to its forty-four member systems in four states--Colorado, Nebraska, New Mexico, and Wyoming. Each of the member systems has a representative that sits on Tri-State's Board of Directors and has an equal vote as to Tri-State's annual rates. Tri-State charges a " postage-stamp rate" for electricity to its members--i.e., the members systems are all charged the same amount. Aplt. App. 649 & n.3. Each member system has entered into a requirements contract with Tri-State, pursuant to which each member agrees to purchase and receive from Tri-State all the electric power and energy the member requires. These member systems then sell the electricity provided by Tri-State to their members
at retail. One of Tri-State's member systems is KCEC, a New Mexico rural electric cooperative that provides services to roughly 28,500 commercial, governmental, and residential member-customers in Northern New Mexico.
Public utilities in New Mexico are regulated by the NMPRC. See N.M. Stat. Ann. § 62-6-4(A) (granting the NMPRC the " general and exclusive power and jurisdiction to regulate and supervise every public utility in respect to its rates and service regulations" ). In 1999, Tri-State and Plains Electric Generation and Transmission Cooperative, Inc. (Plains) applied to the NMPRC to allow the two to merge. Tri-State, Plains, and others entered into a Stipulation which, among other things: (1) required Tri-State to file an " Advice Notice" with the NMPRC prior to setting rates for New Mexico members; (2) provided member cooperatives with the opportunity to file protests to Tri-State's rates with the NMPRC; and (3) provided procedures for the NMPRC to suspend the rates, conduct a hearing, and " establish reasonable rates." Aplt. App. 541. In 2000, the NMPRC approved the Stipulation and merger on condition that Tri-State would be subject to its jurisdiction " to the extent provided by law." Id. at 407. The New Mexico legislature subsequently codified the Stipulation's protest procedures, which provide in relevant part:
New Mexico rates proposed by a generation and transmission cooperative shall be filed with the commission in the form of an advice notice, a copy of which shall be simultaneously served on all member utilities. Any member utility may file a protest of the proposed rates no later than twenty days after the generation and transmission cooperative files the advice notice. If three or more New Mexico member utilities file protests and the commission determines there is just cause in at least three of the protests for reviewing the proposed rates, the commission shall suspend the rates, conduct a hearing concerning reasonableness of the proposed rates and establish reasonable rates.
N.M. Stat. Ann. § 62-6-4(D). In 2012, Tri-State's Board of Directors voted to approve a 4.9% rate increase for the calendar year 2013. Tri-State appropriately filed Advice Notice No. 15 with the NMPRC to inform it of the increase. KCEC, along with two other New Mexico member systems, filed protests objecting to the rate increase. Over Tri-State's objections, the NMPRC suspended Tri-State's rate increase for 2013.
On January 25, 2013, Tri-State filed the present action against the NMPRC. Later, in September 2013, Tri-State approved a wholesale rate increase for 2014 and filed an Advice Notice with the NMPRC. After rate protests by KCEC and three others, the NMPRC proceeded to suspend Tri-State's 2014 rate increases as well. The NMPRC consolidated the proceedings ...