CIBOLA COUNTY – A battle of more than 10 years between Continental Divide Electric Cooperative (CDEC) and the Pueblo of Acoma is finished.
Or is it?
A majority vote from the Public Regulation Commission last week on Wednesday, March 20, was in support of CDEC. The vote from the five-member commission was close, 3-2.
Patrick L. Lyons, Valerie Espinosa, and Ben L. Hall all voted in favor.
Theresa Becenti-Aguilar and Karen L. Montoya voted “nay.”
The issue before the commission was access fees from Acoma to CDEC, estimated at more than $5 million to be paid during a 25-year period.
Acoma was suggesting that the expense be paid from all of CDEC’s 23,800 members, also referred to as customers.
CDEC’s proposal to the commission is the method the expense is paid-only by members within the boundaries of the Pueblo of Acoma.
CDEC’s total service area includes all of Cibola County including the Pueblos of Acoma, Laguna, and Zuni, in addition to Grants, Milan, and portions of the Navajo Nation.
Approximately 46 percent of the electric cooperative’s customers live within Native American land.
Hearing Examiner Carolyn R. Glick heard the issue between Acoma and CDEC in January and ultimately supported the electric cooperative’s proposal. However, Acoma appealed Glick’s decision, which is why it went before the commission.
In a report filed on the PRC website late last week, Acoma’s appeal was denied, stating, “The certification [from Glick] did not misapply the principle cost causation. Contrary to Acoma’s claim that ‘it simply does not matter to what governmental jurisdiction those [access] cost are paid,’ it does matter.”
With the approval, CDEC must now provide the PRC with a suggested rate rider to include a real amount to be paid by Acoma CDEC customers only.
Mediation between the two parties fell apart in August of last year as Acoma pulled out. William Herrmann was the appointed mediator.
After nine years of unsuccessful negotiations, Acoma declared a civil trespass on CDEC in July 2011. Fines in regard to the trespass continued to pile up. Instead of the original estimated $5 million, the recovery access cost is now more than $6 million.
In January 2012, CDEC filed a notice with the PRC relating to recover these costs within a 25-year period. The issue was, who would pay for these costs. CDEC suggested just those within the jurisdictional boundaries of Acoma. Acoma suggested that all CDEC customers pay for the costs.
Mediation between the two parties did not work, therefore a Hearing Officer was appointed. The hearing officer went in favor of CDEC’s proposal and was appealed by the PRC. Therefore, the PRC heard the issue and last week they also went in favor of CDEC.
In March 2012, CDEC distributed a survey that revealed that 5,200 of its members voiced their support of CDEC’s position in paying for Acoma’s access fees.
Is it finished?
Acoma could appeal the PRC’s decision, which would send it to the New Mexico Supreme Court. Acoma has 30-days from the final order date of the PRC decision to file an appeal.
President of the CDEC Board of Trustee’s, Keith Gottlieb, said last year, “We respect the Pueblo of Acoma’s position, but if they choose to charge right-of-way fees to the coop for facilities that are used to serve residents and businesses of Acoma, it would be unfair and unreasonable to expect customers in Grants and Milan or on the sovereign lands of Laguna, Zuni and the Navajo Nation to pay for those access costs.”
CDEC historically, has not paid cash for rights of way associated with distribution lines on Native American lands, according to the PRC report.
CDEC entered into right of way agreements with Laguna and the Navajo Nation in 2009 and 2012, respectively. Under these agreements, instead of paying cash, CDEC responds to the governments’ requests for improvements, and, the costs of improvements are borne by all CDEC members because they benefit CDEC systems as a whole.
CDEC does pay for rights of way associated with a transmission line, which crosses the Pueblo of Zuni. The current agreement with Zuni is valued at $86,000 and it expires in 2016, according to a PRC report.
CDEC pays the governments of Grants and Milan a franchise fee, which is access fees, according to CDEC, and is paid only by residents within Grants and Milan boundaries.
The Acoma agreement with CDEC expired in 2002.
CDEC built a $2.2 million substation near San Fidel per the request of the Acoma government in 2006. The substation primarily benefits Acoma, according to CDEC; however, it was paid for by all CDEC members because it was an overall improvement of the electric cooperatives services.