August 18, 2011 – Moongate Water Company, Inc., a New Mexico public utility v. City of Las Cruces, No. 27,889

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: August 18, 2011
NO. 27,889
MOONGATE WATER COMPANY, INC.,
a New Mexico public utility,
Plaintiff-Appellant/Cross-Appellee,
v.
CITY OF LAS CRUCES,
Defendant-Appellee/Cross-Appellant.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Robert E. Robles, District Judge
Kyle W. Gesswein
Las Cruces, NM
William A. Walker, Jr.
Las Cruces, NM
for Appellant

Keleher & McLeod, P.A.
Spencer Reid
Thomas C. Bird
Kurt Wihl
S. Charles Archuleta
Albuquerque, NM
City of Las Cruces
Marcia B. Driggers, Assistant City Attorney
Las Cruces, NM
for Appellee

OPINION
GARCIA, Judge.
{1} 	This appeal requires us to consider whether a certificate of public convenience
and necessity (CCN) issued by the Public Regulatory Commission (PRC) grants a
public utility exclusive service rights against a municipality with a population less
than or equal to two hundred thousand people. The district court granted summary
judgment against the City of Las Cruces (the City) and found that the City’s expansion
into the service area of Moongate Water Co., Inc. (Moongate) constituted a partial
taking of Moongate’s exclusive property interest under its CCN. After a subsequent
evidentiary hearing, the district court found that the evidence did not support an award
of damages to Moongate as a result of the taking. 	Moongate appeals the district
court’s damages determination, arguing that denying any value for the partial taking
of its property interest was error and per se unconstitutional. In a cross-appeal, the
City contends that the district court erred by determining that Moongate’s CCN
granted it exclusive service rights against the City, and absent a right of exclusivity,
the district court erred by concluding that a taking occurred.
{2} 	We hold that the district court erred in determining that Moongate acquired
exclusive service rights against the City through its CCN, and consequently, the court
erred in awarding summary judgment to Moongate on the taking issues. As a result,

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we reverse the district court’s award of summary judgment in favor of Moongate on
its claims of a partial taking of its property interest by inverse condemnation (Count
II) and regulatory taking of that interest under constitutional taking clauses (Count
III), and we remand for further proceedings consistent with this Opinion. Because we
reverse on these grounds, we do not reach the additional arguments raised by the
parties on appeal.
FACTUAL AND PROCEDURAL HISTORY
{3} 	Since 1983, Moongate has been a privately owned and regulated public utility
company supplying water to rural residents in an unincorporated area referred to as
the East Mesa and Organ Pass area on the outskirts of Las Cruces city limits,
including Section 15. Over time, development in Section 15 required that Moongate
expand its system by extending water lines and increasing water storage capacity
within this area.
{4} 	In 1995, the City began planning for population growth and city expansion on
the East Mesa. The City secured water rights through the State Engineer’s Office and
secured capital funding to build additional water servicing infrastructure. In 2004 and
2005, the City also agreed to annex a portion of Section 15 as part of the development
for three new subdivisions called Dos Sueños, Los Enamorados, and Rincón Mesa.
The City constructed the necessary water lines and infrastructure as part of its

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municipal water utility system and began servicing water to the residents as they
requested service in the three new subdivisions.
{5} 	Subsequent to the City’s annexation and development approval for the new
subdivisions in Section 15, Moongate filed a complaint and an amended complaint
against the City. 	In Count I of the amended complaint, Moongate sought, among
other things, a declaratory judgment stating that Moongate’s CCN from the PRC gave
it the exclusive right to provide water to the service area annexed by the City for the
three 	new 	subdivisions. 	In 	Count 	II, 	Moongate 	requested 	payment 	of 	just
compensation for the City’s partial taking of its property right pursuant to the inverse
condemnation statute, NMSA 1978, § 42A-1-29(C) (1983). 	Count III sought
compensation for the regulatory taking of Moongate’s property under the United
States and New Mexico Constitutions.
{6} 	The City moved for summary judgment on all three counts, arguing that the
City’s municipal water utility was not subject to PRC regulation, Moongate’s CCN
did not give it an exclusive right to serve the disputed area against the City, and no
taking occurred as a result of the lawful competition between the City and Moongate.
Moongate subsequently filed a cross-motion for summary judgment on Counts II and
III, arguing that Moongate was entitled to just compensation or damages as the result
of the City’s taking of Moongate’s exclusive right to serve the disputed area.

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{7} 	The district court granted summary judgment in favor of Moongate on Counts
II and III, and Moongate subsequently withdrew its claims for relief under Count I.
The court concluded that the City effectuated a taking of Moongate’s property interest
based upon the loss of Moongate’s exclusive right to serve the relevant portion of
Section 15 pursuant to its CCN. The court reasoned that unless otherwise determined
by the PRC, Moongate’s CCN was a grant of exclusive territory under NMSA 1978,
Section 62-9-1 (2005). 	The court further interpreted NMSA 1978, Section 62-3-
2.1(C) (1991), to prohibit the City from providing service in areas covered by
Moongate’s CCN until the City elected to be subject to the Public Utilities Act (PUA),
NMSA 1978, Sections 62-1-1 to 62-6-28, 62-8-1 to 62-13-15 (1884, as amended
through 2010), or exercised its authority to condemn the disputed area. 	The court
further determined that Moongate would be entitled to provide proof of any damages
that resulted from the City’s intrusion into Moongate’s service area, and the court set
the evidentiary portion of the damages question for a bench trial.
{8} 	Thereafter, the district court proceeded with a bench trial to value the damages
incurred by Moongate as a result of the taking of a portion of Moongate’s exclusive
CCN service area. Ultimately, the district court determined that the evidence did not
support a damages award to Moongate.
{9} 	The City now appeals the district court’s award of summary judgment in favor

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of Moongate on the taking issues in Counts II and III, arguing that the court erred as
a matter of law in determining that Moongate’s CCN granted it exclusive service
rights against the City. Moongate appeals the district court’s determination that the
evidence did not support a damages award.
DISCUSSION
{10} 	On appeal, the parties’ arguments regarding whether the district court erred in
awarding summary judgment to Moongate on the taking issues and Moongate’s
entitlement to damages depend upon interpretation of the PUA to determine whether
Moongate’s CCN granted Moongate the exclusive right to serve the disputed area
against the City’s water system.
Standard of Review
{11} 	Determining whether a CCN issued pursuant to the PUA extends exclusive
service rights to a public utility against a municipal water system is a question of
statutory interpretation that we review de novo. See Pub. Serv. Co. of N.M. v. N.M.
Pub. Util. Comm’n, 1999-NMSC-040, ¶ 14, 128 N.M. 309, 992 P.2d 860 (stating that
statutory interpretation is a question of law that we review de novo). “Our goal in
interpreting a statute is to determine and give effect to legislative intent.” N.M. Bd.
of Veterinary Med. v. Riegger, 2007-NMSC-044, ¶ 11, 142 N.M. 248, 164 P.3d 947.
In construing a statute, we first examine “the plain language of the statute, giving the

6
words their ordinary meaning, unless the Legislature indicates a different [meaning]
was intended.” 	N.M. Indus. Energy Consumers v. N.M. Pub. Regulation Comm’n,
2007-NMSC-053, ¶ 20, 142 N.M. 533, 168 P.3d 105. Additionally, “where several
sections of a statute are involved, they must be read together so that all parts are given
effect.” High Ridge Hinkle Joint Venture v. City of Albuquerque, 1998-NMSC-050,
¶ 5, 126 N.M. 413, 970 P.2d 599. 	“When statutory language is clear and
unambiguous, [the appellate courts] must give effect to that language and refrain from
further statutory interpretation. Only if an ambiguity exists will we proceed further
in our statutory construction analysis.” 	Marbob Energy Corp. v. N.M. Oil
Conservation Comm’n, 2009-NMSC-013, ¶ 9, 146 N.M. 24, 206 P.3d 135 (internal
quotation marks and citation omitted).
Applicability of the PUA to Municipal Water Systems
{12} 	A municipality that owns or operates a water utility system is ordinarily
authorized to furnish water outside its corporate boundaries pursuant to NMSA 1978,
Section 3-27-8 (1965). However, this statutory authority is limited if the municipality
is subject to the restrictions of the PUA, Sections 62-1-1 to -6-26.1 and 62-8-1 to -13-
14. Morningstar Water Users Ass’n v. N.M. Pub. Util. Comm’n, 120 N.M. 579, 583,
904 P.2d 28, 32 (1995). The PUA is “a comprehensive regulatory scheme granting
the PRC the policy-making authority to plan and coordinate the activities of New

7
Mexico public utilities[.]” Doña Ana Mut. Domestic Water Consumers Ass’n v. N.M.
Pub. Regulation Comm’n, 2006-NMSC-032, ¶ 16, 140 N.M. 6, 139 P.3d 166.
{13} 	The PUA expressly excludes a municipality from the definition of a “public
utility,” and a municipality is not subject to the operation of the PUA or any of its
provisions unless an exception applies. Section 62-3-3(E), (G). The PUA provides
that “[i]n the absence of voluntary election by a municipality to come within the
provisions of the [PUA], the municipality shall be expressly excluded from the
operation of that act and from the operation of all its provisions, and no such
municipality shall for any purpose be considered a public utility[.]” Section 62-3-3(E)
(emphasis added). 	Additionally, Section 62-6-4(A) grants the PRC exclusive
jurisdiction to regulate public utilities, but expressly provides that “[n]othing in this
section . . . shall be deemed to confer upon the [PRC] power or jurisdiction to regulate
or supervise the rates or service of any utility owned and operated by any municipal
corporation.”
{14} 	Pursuant to Section 62-3-3(E), the first exception under which a municipality
may be subject to the PUA is by voluntarily electing to subject itself to all of the
provisions of the PUA under Section 62-6-5. See Morningstar, 120 N.M. at 588, 904
P.2d at 37 (recognizing that a municipality may choose to submit itself to full
regulation by the PUA under Section 62-6-5). 	Section 62-6-5 provides that

8
“[n]otwithstanding any of the provisions in Section 62-6-4 . . . , any municipality
desiring to avail itself of all the benefits of the [PUA] . . . may elect to come within
the provisions of that act.”
{15} 	In 1991, the Legislature amended the PUA to provide a second exception under
which a municipality may be subject to PUA under limited circumstances. See 1991
N.M. Laws, ch. 143, §§ 1, 2 (codified as Section 62-3-2.1 and Section 62-9-1.1).
Section 62-3-2.1(C) states that “[t]he following are declared to be the objects and
purposes” of the 1991 amendment:
Experience has proven that the construction, development and extension
of 	proper 	plants 	and 	facilities 	cannot 	be 	accomplished 	without
unnecessary duplication and economic waste within areas certificated to
water . . . utilities without controls against duplicative intrusions into
certificated areas by municipal utilities. 	A rational basis exists to
prohibit intrusion of municipal water . . . 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’s] 	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 . . ., 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.
{16} 	Additionally, Section 62-9-1.1(A) and (B) provides that “[n]otwithstanding any
other provision of the [PUA],” the PRC has authority and jurisdiction to determine
whether a municipal water system would intrude into the public utility’s CCN and to

9
order the municipality to “cease and desist” from continued construction. However,
Section 62-9-1.1(C) specifies that “[f]or purposes of this section, ‘municipality’ means
any municipality that has a population of more than two hundred thousand . . . and is
located in a class A county.” As a result, our Supreme Court has interpreted Section
62-9-1.1 to provide the PRC with limited jurisdiction if a municipality with a
population exceeding two hundred thousand intrudes into an area covered by a public
utility’s CCN. Morningstar, 120 N.M. at 588, 904 P.2d at 37.
{17} 	It is undisputed that the City has not elected to be subject to the PUA and that
the City’s population does not exceed two hundred thousand. Consequently, the City
argues that the City is not subject to the PUA or jurisdiction by the PRC. However,
Moongate contends that Section 62-3-2.1(C) prohibits all municipalities from
intruding into an area covered by a public utility’s CCN until the municipality elects
to come within the terms of the PUA. Moongate further argues that Section 62-9-1.1
is a special provision that places the City of Albuquerque under limited PRC
jurisdiction even in the absence of such an election.
{18} 	We interpret the plain language of Section 62-3-2.1(C) to explain the purpose
behind the Section 62-9-1.1 exception for large municipalities. However, Section 62-
3-2.1(C) does not create an additional exception applicable to all municipalities.
Section 62-3-2.1(C) begins by stating that “[t]he following are declared to be the

10
objects and purposes” of this 1991 amendment. (Emphasis added.) Section 62-3-
2.1(C) then explains that based on experience, “[a] rational basis exists to prohibit
intrusion of municipal water . . . facilities or service” into areas served by a public
utility pursuant to a CCN. (Emphasis added.) Although Section 62-3-2.1(C) explains
that “a rational basis exists” for prohibiting municipal water utilities from intruding
into CCN areas, Section 62-3-2.1(C) does not contain any operative language that
actually prohibits municipal water utilities from serving those areas. Instead, Section
62-3-2.1(C) identifies Section 62-9-1.1 as the operative control on intrusions by
municipal utilities. 	See § 62-3-2.1(C) (stating that “[w]ithout such controls as
provided by Section 62-9-1.1,” the policies of the PUA may be frustrated). 	As a
result, we interpret Section 62-3-2.1(C) to explain the Legislature’s intent in enacting
Section 62-9-1.1. 	However, absent language providing the PRC with additional
authority over municipalities, we determine that Section 62-3-2.1(C) does not further
expand the scope of the PUA or the PRC’s jurisdiction over municipalities beyond
those controls it identifies in Section 62-9-1.1. 	See El Paso Elec. Co. v. N.M. Pub.
Regulation Comm’n, 2010-NMSC-048, ¶ 6, 149 N.M. 174, 246 P.3d 443 (stating that
the PRC “may exercise only its statutorily authorized jurisdiction”).
{19} 	In Morningstar, a water association similarly argued that a small municipality
was subject to the PUA’s prohibition against intrusion into a public utility’s service

11
area. 120 N.M. at 583, 904 P.2d at 32. However, our Supreme Court determined that
neither party was a “public utility” for purposes of the PUA. 	Id. at 588, 904 P.2d at
37. In pertinent part, the Court reasoned that “[u]nder Section 62-3-3(E), with two
exceptions, all municipal water facilities are excluded from the PUA.” Morningstar,
120 N.M. at 588, 904 P.2d at 37. 	Consequently, the Court held that the small
municipality was not subject to the PUA or PRC jurisdiction since the municipality
had not elected to be subject to the PUA and did not have a population exceeding two
hundred thousand. Id. We similarly conclude that the City’s municipal water utility
is not subject to the PUA or PRC jurisdiction. Absent PRC jurisdiction, we note that
jurisdiction before the district court was proper, and this Court has jurisdiction over
the appeal. See Fleming v. Town of Silver City, 1999-NMCA-149, ¶¶ 2, 7, 128 N.M.
295, 992 P.2d 308 (concluding that jurisdiction before the district court and appellate
jurisdiction before this Court were proper where a small municipality was not subject
to PUA regulation).
{20} 	To the extent that Moongate argues that Section 62-3-2.1(C) is ambiguous
regarding whether it applies to all municipalities, we recognize that any exception
subjecting a municipality to the PUA must be explicit. In Morningstar, our Supreme
Court noted that the plain language of Section 62-3-3(E) “could not be more explicit”
in stating that “[n]o such municipality shall for any purpose be considered a public

12
utility.” Morningstar, 120 N.M. at 588, 904 P.2d at 37 (internal quotation marks and
citation omitted). The Court further reasoned that “[o]nce something is defined out
of a statute it cannot, without an unambiguous and specific provision, be brought back
in.” Id. at 589, 904 P.2d at 38. Finally, the Court reasoned that the two unambiguous
exceptions subjecting municipalities to the PUA “show that when the [L]egislature
intended the PUA to apply to municipalities it did so explicitly.” Id. As a result, the
Court concluded that any ambiguity in Section 62-9-1 did not create an exception
subjecting small, non-certificated municipalities to the PUA. Morningstar, 120 N.M.
at 589, 904 P.2d at 38.
{21} 	Unlike the two recognized exceptions under which a municipality is subject to
the PUA, Section 62-3-2.1(C) does not contain explicit language indicating that it is
creating an exception to the general exclusion of municipalities from the PUA. See
§ 62-6-5 (stating that “[n]otwithstanding any of the provisions in Section 62-6-4,” a
municipality may elect to be subject to the PUA); § 62-9-1.1(A), (C) (stating that
“[n]otwithstanding any other provision of the [PUA],” the PRC has the authority and
jurisdiction over a municipality with a population exceeding two hundred thousand
that intrudes into a CCN area). 	Moreover, unlike the two recognized exceptions,
Section 62-3-2.1(C) does not contain explicit language subjecting a municipality to
the PUA or PRC jurisdiction. See § 62-6-5 (stating that when a municipality elects

13
to avail itself of the benefits of the PUA, “it shall be subject to all the provisions of the
[PUA]”); § 62-9-1.1(A), (C) (providing that Section 62-9-1.1(A) confers additional
PRC “authority and jurisdiction” over municipalities with a population exceeding two
hundred thousand). 	As a result, we conclude that Section 62-3-2.1(C) identifies a
public policy concern but lacks the explicit language required to create an additional
exception subjecting small municipalities to the PUA or to PRC jurisdiction
established under the PUA.
{22} 	Moongate also relies on Doña Ana, 2006-NMSC-032, for the proposition that
issuing a CCN to a public utility creates a presumption of exclusive service rights
pursuant to Section 62-9-1. 	Doña Ana is distinguishable because it addressed the
issue of an intrusion by one regulated utility into the CCN area of another regulated
utility. 2006-NMSC-032, ¶¶ 3, 6, 8 n.1 (noting that the PRC had jurisdiction since the
dispute was between a regulated public utility and a regulated mutual domestic water
association). Our Supreme Court has previously recognized that “[o]nly utilities that
fall within the [PRC’s] regulatory jurisdiction can obtain territorial protection under
Section 62-9-1 or Section 62-9-1.1.” Morningstar, 120 N.M. at 590, 904 P.2d at 39.
As a result, granting a CCN to a public utility only protects that utility “from intrusion
by another certificated utility, or by a non-certificated municipality with a population
exceeding two hundred thousand[.]” Id. (citation omitted).

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{23} 	Moongate argues that interpreting Section 62-3-2.1(C) to prohibit intrusions by
only large municipalities would frustrate the Legislature’s intent of encouraging
investment by public utilities and preventing the economic waste caused by
duplicative municipal water service in CCN areas. We recognize that Section 62-3-
2.1(D) requires that the provisions of the PUA and its 1991 amendment “be liberally
construed to carry out their purposes.” 	However, because the plain language of
Section 62-3-2.1(C) and Section 62-9-1.1 limits the scope of the 1991 amendment to
municipalities with a population exceeding two hundred thousand, we do not proceed
beyond a plain language analysis. See Marbob Energy Corp., 2009-NMSC-013, ¶ 9
(concluding that “[w]hen statutory language is clear and unambiguous, [the appellate
courts] must give effect to that language and refrain from further statutory
interpretation”) (internal quotation marks and citation omitted). We further note that
the creation of any new exception subjecting small municipalities to the PUA is within
the purview of the Legislature and not this Court. 	See Hartford Ins. Co. v. Cline,
2006-NMSC-033, ¶ 15, 140 N.M. 16, 139 P.3d 176 (reasoning that it is the duty of the
Legislature to make laws and the duty of the courts to expound them).
{24} 	In Public Service Co. of New Mexico, 1999-NMSC-040, ¶ 21, our Supreme
Court rejected a public utility’s similar argument that excluding a small municipality
from the PUA would frustrate the Legislature’s explicit policy of promoting efficient

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power grids in New Mexico. The Court reasoned that it was “unpersuaded . . . that
the express policy [statement] should be read so broadly as to offend the plain
language of Section 62-3-3(E)[.]” Pub. Serv. Co. of N.M., 1999-NMSC-040, ¶ 21.
Similarly, we reject Moongate’s argument that the Legislature’s express policy
statement in Section 62-3-2.1(C) overcomes the plain language of Section 62-3-3(E)
excluding municipalities from the PUA. Accordingly, we conclude that Moongate’s
CCN did not grant Moongate exclusive service rights against the City’s water utility.
Summary Judgment Regarding the Taking Issues and Moongate’s Entitlement
to Damages
{25} 	The district court concluded that Moongate was entitled to summary judgment
as a matter of law on Counts II and III based upon Moongate’s exclusive right to serve
the disputed area. 	The City contends, however, that since Moongate did not have
exclusive service rights against the City, the district court erred by awarding summary
judgment to Moongate on the taking issues and determining that Moongate was
entitled to any proven damages.
{26} 	Summary judgment was appropriate in this case if there were no genuine issues
of material fact, and Moongate was entitled to judgment as a matter of law. See Self
v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. In
a motion for summary judgment, the movant has the initial burden of establishing a
prima 	facie 	case 	for 	summary 	judgment. 	Romero 	v. 	Philip 	Morris, 	Inc.,

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2010-NMSC-035, ¶ 10, 148 N.M. 713, 242 P.3d 280. “Once this prima facie showing
has been made, the burden shifts to the non-movant to demonstrate the existence of
specific evidentiary facts which would require trial on the merits.” 	Id. 	(internal
quotation marks and citation omitted). “Because resolution on the merits is favored,
a reviewing court view[s] the facts in a light most favorable to the party opposing the
motion and draw[s] all reasonable inferences in support of a trial on the merits.”
Edward C. v. City of Albuquerque, 2010-NMSC-043, ¶ 43, 148 N.M. 646, 241 P.3d
1086 (alterations in original) (internal quotation marks and citation omitted).
{27} 	Moongate argues that it was entitled to summary judgment as a matter of law
because its CCN gave Moongate exclusive service rights in the disputed area.
However, Moongate did not provide any argument or authority either below or on
appeal that summary judgment was appropriate absent the exclusivity of its service
rights against the City. As a result of our determination that Moongate’s CCN did not
grant Moongate exclusive service rights against the City, we conclude that Moongate
failed to meet its burden of establishing a prima facie case that it was entitled to
summary judgment. Consequently, we hold that the district court erred in granting
summary judgment to Moongate on Counts II and III.
CONCLUSION
{28} 	For the foregoing reasons, we reverse the district court’s award of summary

17
judgment to Moongate on Counts II and III, and we remand to the district court for
further proceedings consistent with this Opinion.
{29} 	IT IS SO ORDERED.
__________________________________
TIMOTHY L. GARCIA, Judge
I CONCUR:
___________________________
MICHAEL E. VIGIL, Judge

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JONATHAN B. SUTIN, Judge (specially concurring).
{30} 	I 	acknowledge 	Morningstar’s 	view 	of 	Section 	62-9-1.1(A) 	and 	(C).
Morningstar, 120 N.M. at 588, 904 P.2d at 37. I will not attempt to distinguish
Morningstar based on its facts. Our Opinion here with its analyses, in which I concur,
solidifies, with Morningstar, Section 62-9-1.1(C) as limiting to large municipalities
the broad policy and intent of Section 62-3-2.1(C) and the operative effect of Section
62-9-1.1(A). I am nevertheless puzzled as to why the Legislature went to the trouble
of 	enacting 	Sections 	62-3-2.1(C) 	and 	62-9-1.1(A). 	These 	two 	provisions
unmistakably and elaborately express a 	purpose and set in motion an operative
administrative 	process 	designed 	to 	protect 	public 	utilities 	from 	municipal
encroachment into a public utility’s CCN area. Had the Legislature had in mind their
applicability only to large municipalities, one would think that when enacting these
two provisions, the Legislature would have approached the language in the provisions
or the statutory framework much differently. 	What comes to mind is that the
Legislature giveth and the Legislature taketh away, and we cannot question the
wisdom of these enactments. I am, however, impressed that legislative silence after
Morningstar would appear to indicate that the Legislature agrees with the statements

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in Morningstar and is satisfied that Section 62-9-1.1(C) was intended to limit the
operative effect of Section 62-9-1.1(A) to large municipalities.
__________________________________
JONATHAN B. SUTIN, Judge