This decision was not selected for publication inthe New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of non-precedential dispositions. Please also note that this electronic decision may contain computer-generated errors or other deviations from the official paper version filed by the Supreme Court. IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1 2 Filing Date: December 15, 2016 3

DAVID A. NEAL and 4 CRISTELLA TRUJILLO-NEAL, 5 Appellants, 6

v. NO. S-1-SC-35638 7 NEW MEXICO PUBLIC REGULATION COMMISSION, 8 Commissioner KAREN L. MONTOYA (Chair), 9 Commissioner LINDA LOVEJOY (Vice Chair), 10 Commissioner PATRICK H. LYONS, 11 Commissioner SANDY JONES, 12 Commissioner VALERIE ESPINOZA, 13 Appellees. 14 APPEAL FROM THE NEW MEXICO PUBLIC REGULATION 15 COMMISSION 16 David A. Neal, Pro Se 17 Cristella Trujillo-Neal, Pro Se 18 Santa Fe, NM 19 for Appellants 20 New Mexico Public Regulation Commission 212 Judith Ellen Amer, Associate General Counsel 1 Santa Fe, NM 2 for Appellees 3

DECISION 4 DANIELS, Chief Justice 5 {1} Having read the briefs, heard oral argument, and otherwise fully informed 6 themselves on the issues and applicable law as raised by the parties in this direct 7 appeal before the Supreme Court, the Justices unanimously concur that it is 8 appropriate to dispose of this case by decision pursuant to Rule 12-405(B)(1) NMRA 9 rather than by formal precedential opinion. This does not mean that this case is 10 considered unimportant to the Court but only that the disposition does not create new 11 precedent. 12 Background 13 {2} Appellants David A. Neal and Cristella Trujillo-Neal have filed a timely appeal 14 of the New Mexico Public Regulation Co mmission’s November 18, 2015, final order 15 in Case 15-00087-UT, Jemez Mountains Electric Cooperative, Inc.’s Compliance 16 Filing Related to Tribal Right-of-Wa y Rate Rider Surcharge Reconciliation 17 Adjustments , pursuant to NMSA 1978, Section 62-11-1 (1993). Case 15-00087-UT 18 is a compliance filing by the Jemez Mountains Electric Cooperative (JMEC) that 193 addresses for multiple cases before th e Commission the reconciliation of billing 1 surcharges, including the Rate Rider 4 surcharge effective in August 2014 by final 2 order of the Commission. Rate Rider 4 recovers right of way fees from JMEC 3 customers served within the boundaries of th e Pueblo of San Ildefonso. Appellants do 4 not articulate any issues with the calculati on method used in the reconciliation of Rate 5 Rider 4 but rather challenge the legitim acy of the underlying rate allocation 6 methodology previously approved by the Co mmission in its August 2012 final order 7 entered in Case 12-00020-UT, In the Matter of Jemez Mountains Electric 8 Cooperative’s Advice Notice No. 59 , which Appellants did not appeal. 9 {3} Appellants now contend that (1) the notice provided in Case 12-00020-UT was 10 insufficient and violated their due proce ss rights, (2) the Commission acted arbitrarily 11 and capriciously when adopting the rate allocation methodology in Case 12-00020- 12 UT, (3) the underlying right of way contr acts entered into by JMEC and the tribes 13 were not validly formed, (4) the manner inwhich rates were set denied Appellants 14 equal protection, (5) the Commission should not be allowed to collaterally estop 15 Appellants from challenging the underlying rate allocation methodology established 16 in an earlier proceeding, and (6) the Commission acted arbitrarily and capriciously in 17 denying Appellants’ Motion for Rehearing and Reconsideration (Motion) in Case 18 15-00087-UT, the case on appeal. Appellants as k this Court to order the Commission 194 to reopen Case 12-00020-UT. 1 {4} For the reasons set forth in this deci sion, we are not persuaded by Appellants’ 2 arguments. The majority of Appellants’ cont entions are in reality challenges to the 3 merits of Case 12-00020-UT. But Appellants never filed a timely appeal from Case 4 12-00020-UT pursuant to Section 62-11-1 or pursuant to any other applicable 5 provision of law. We therefore must addre ss at the outset whether there were unusual 6 circumstances that would excuse Appellants’ untimely challenges to the rulings in that 7 case. We conclude both that the notice provided in Case 12-00020-UT was sufficient, 8 contrary to Appellants’ first contention, and that there are no unusual circumstances 9 that would permit this Court to excuse Appellants’ untimely appeal. Because there are 10 no unusual circumstances that would excuseAppellants’ untimely Appeal of Case 12- 11 00020-UT, this Court cannot reach Appellants’ second through fourth contentions 12 regarding the merits of Case 12-00020-UT. See Chavez v. U-Haul Co. of N.M. , 13 1997-NMSC-051, ¶¶ 23-26, 124 N.M. 165, 947 P. 2d 122. Therefore we express no 14 opinion as to whether there might or might not have been revers ible error in Case 12- 15 00020-UT or in any of the underlying rightof way cases. We also must reject 16 Appellants’ fifth contention concerning collateral estoppel because that doctrine is not 17 applicable in this circumstance where the rate allocation methodology was not an 18 ultimate issue in Case 15- 00087-UT, a compliance filing for the reconciliation of 195 surcharges including Rate Rider 4. See Larsen v. Farmington Mun. Sch. , 1 2010-NMCA-094, ¶ 9, 148 N.M. 926, 242 P. 3d 493 (stating that for collateral 2 estoppel to be applicable “the two cases mu st have concerned the same ultimate issue 3 or fact”). Addressing Appellants’ sixth c ontention, this Court concludes that the 4 Commission did not act arbitrarily and capriciously when it denied Appellants’ 5 Motion. 6 There Are No Unusual Circums tances Excusing Appellants’ Untimely Appeal of 7 Case 12-00020-UT 8 {5} It is important to understand that decisions of the Commission cannot simply 9 be appealed at any time in the future without regard to procedural deadlines and other 10 requirements established by law. Section 62 -11-1 establishes criteria for the lawful 11 appeal of a Commission case to the New Me xico Supreme Court. There must be a 12 Commission final order, the person appealing from the final order must be a party to 13 that case, and the appeal must be filed within thirty days of the final order or the 14 refusal of a motion to reconsider the final order. Neither filing a protest in a 15 Commission case nor filing a motion for rec onsideration constitutes a lawful appeal 16 under Section 62-11-1. 17 {6} The exercise of appellate jurisdiction is subject to the mandatory precondition 18 of timely filing. Trujillo v. Serrano , 1994-NMSC-024, ¶ 14, 117 N.M. 273, 871 P.2d 196 369. “[T]he appropriate inquiryfor determining if a court can exercise its ‘discretion 1 and entertain an appeal even though it is not timely filed’ is whether ‘unusual 2 circumstances beyond the control of the parties’ are present.” Schultz ex rel. Schultz 3 v. Pojoaque Tribal Police Dep’t , 2010-NMSC-034, ¶¶ 18, 25, 148 N.M. 692, 242 P.3d 4 259 (quoting Trujillo , 1994-NMSC-024, ¶¶ 15, 19) (holding that an unanticipated 5 mailing delay that was outside the control of the party constituted an unusual 6 circumstance); see also Chavez , 1997-NMSC-051, ¶¶ 22-25 (excusing an untimely 7 appeal when a pro se petitioner faxed the no tice of appeal fifty-eight minutes late but 8 not when a petitioner was thirty days late with no unusual circumstances to excuse the 9 untimeliness); Romero v. Pueblo of Sandia/Sandia Casino , 2003-NMCA-137, ¶ 7, 134 10 N.M. 553, 80 P.3d 490 (holding that actions by the court which caused the late filing 11 constituted an unusual circumstance beyond the control of the parties). 12 {7} In this case, Appellants are over four year s late in filing their appeal of Case 12- 13 00020-UT. Appellants contend that noti ce of Case 12-00020-UT was insufficient, 14 depriving them of the opportunity to participate in the case. If notice in Case 12- 15 00020-UT was insufficient so that Appellants had no opportunity to participate in the 16 case, it follows that Appellants would havehad no opportunity to file a timely appeal 17 in the case. We therefore consider whether notice in Case 12-00020-UT was sufficient 18 to afford a lawful opportunity to participate and appeal. 197 {8} A fundamental requirement of constituti onal due process in any proceeding is 1 for notice to be “reasonably calculated, u nder all the circumstances, to apprise the 2 interested parties of the pendency of th e action and afford them an opportunity to 3 present their objections.” Mullane v. Cent. Hanover Bank & Trust Co. , 339 U.S. 306, 4 314 (1950). New Mexico courts have endorsed this principle. See Ronald A. v. State 5 ex rel. Human Servs. Dep’t (In re Termination of Parental Rights of Ronald A.) , 6 1990-NMSC-071, ¶ 13, 110 N.M. 454, 797 P.2d 243 (quoting Mullane , 339 U.S. at 7 314). The relevant inquiry is not whether Appellants actually received notice 8 regarding the new rate allocation methodology proposed in Case 12-00020-UT but 9 whether the Commission “employed a method of service reas onably calculated to 10 result in [Appellants’] actual receipt of the notice.” Cordova v. State, Taxation & 11 Revenue , 2005-NMCA-009, ¶ 29, 136 N.M. 713, 104 P.3d 1104. “‘[D]ue process is 12 a flexible right and the amount of process due depends on the particular circumstances 13 of each case.’” State ex rel. CYFD v. Kathl een D.C.(In re Damion M.C.) , 14 2007-NMSC-018, ¶ 14, 141 N.M. 535, 157 P.3d 714 (alteration in original) (citation 15 omitted). In an administrative proceeding, no tice need not be specific; general notice 16 of the issues to be presented at the hearing is sufficient and satisfies due process 17 requirements. Albuquerque Bernalillo Co. Water Util. Auth. v. N.M. Pub. Regulation 18 Comm’n , 2010-NMSC-013, ¶ 21, 148 N.M. 21, 229 P.3d 494 (citing Santa Fe 198 Exploration Co. v. Oil Conservation Comm’n , 1992-NMSC-044, ¶ 21, 114 N.M. 103, 1 835 P.2d 819). Failure to follow statutory procedure is not necessarily dispositive of 2 a due process violation. Bird v. Lankford, 1993-NMCA-128, ¶ 9, 116 N.M. 408, 862 3 P.2d 1267. 4 {9} Appellants argue that notice in Case 12-00020-UT was insufficient because its 5 December 2011 Advice Notice 59 did not inform all customers of the possibility that 6 their electricity rates could increase. However, in February 2012 the Commission 7 hearing examiner required a supplemental no tice, in addition to Advice Notice 59, to 8 be mailed to all customers and published in the Albuquerque Journal on March 2, 9 2012. This supplemental notice informed customers that “ this case may result in rate 10 increases to some or all custom ers in all rate classifications .” This supplemental 11 notice cured any due process deficiencies th at may have been originally present in 12 Advice Notice 59. Furthermore, the suppl emental notice was reasonably calculated 13 under the circumstances to inform interestedparties of the pendi ng action as required 14 under New Mexico case law. See Albuquerque Bernalillo Co. Water Util. Auth. , 15 2010-NMSC-013, ¶¶ 22, 24 (holding that notice of a proceeding involving a rate 16 increase that was published in the Albuquerque Journal satisfied due process 17 requirements). 18 {10} Based on established precedent, we c onclude that the notice in Case 12-00020- 199 UT was sufficient to comply with constituti onal due process require ments. We express 1 no opinion as to whether the notice given in Case 12-00020-UT was statutorily 2 sufficient because that issue was not timely appealed pursuant to Section 62-11-1. 3 Because Appellants cite no other unusual circumstances to excuse their four-year 4 delay in appealing, this C ourt cannot excuse Appellants’ untimely challenge to the 5 2012 proceedings. Accordingly, it would beinappropriate to offer any advisory 6 opinion on Appellants’ second through fourthcontentions regarding the merits of 7 Case 12-00020-UT or the merits of any of the other underlying right of way cases 8 which were not timely appealed. See Chavez , 1997-NMSC-051, ¶¶ 23-26. 9 The Commission Did Not Act Arbitrarily and Capriciously in Denying 10 Appellants’ Motion in Case 15-00087-UT 11 {11} Because Appellants’ appeal of Case 15-00087-UT was timely pursuant to 12 Section 62-11-1, we address on the merits Appellants’ sixth contention, that the 13 Commission acted arbitrarily and capricious ly in denying Appellants’ Motion for 14 Rehearing and Reconsideration in Case 15-00087-UT. 15 {12} Applying established law, we review administrative orders to determine 16 whether the Commission’s denial of the Motion was “arbitrary and capricious, not 17 supported by substantial evidence, outside the scope of the agency’s authority, or 18 otherwise inconsistent with law.” Doña Ana Mut. Domestic Water Consumers Ass’n 1910 v. N.M. Pub. Regulation Comm’n , 2006-NMSC-032, ¶ 9, 140 N.M. 6, 139 P.3d 166. 1 Appellants have the burden to make this showing. NMSA 1978, § 62-11-4 (1965); 2 N.M. Indus. Energy Consumers v. N.M. Pub. Regulation Comm’n , 2007-NMSC-053, 3 ¶ 13, 142 N.M. 533, 168 P.3d 105. “A ruling by an administrative agency is arbitrary 4 and capricious if it is unreasonable or without a rational basis, when viewed in light 5 of the whole record.” Rio Grande Chapter of Sierra Club v. N.M. Mining Comm’n , 6 2003-NMSC-005, ¶ 17, 133 N.M. 97, 61 P.3d 806. Addressing questions of fact in 7 administrative appeals, we generally de fer to the agency’s determination. Morningstar 8 Water Users Ass’n v. N. M. Pub. Util. Comm’n , 1995-NMSC-062, ¶ 12, 120 N.M. 579, 9 904 P.2d 28. “We review i ssues of law de novo.” N.M. Att’y Gen. v. N.M Pub. 10 Regulation Comm’n , 2015-NMSC-032, ¶ 24, 359 P.3d 133. 11 {13} Appellants argue that the Commission’s decision to deny Appellants’ Motion 12 was arbitrary and capricious because th e Commission did not read or take into 13 consideration their Motion. In light of the whole record, th e Commission’s decision 14 was not arbitrary and capricious. After Appellants filed the Motion, the Commission, 15 seeking additional information, requestedand received responses from JMEC and 16 Commission Staff. In denying the Motion, the Commission held that the rates 17 pertaining to the right of way fees were previously determined to be lawful and that 18 the calculations relating to the reconciliation of Rate Rider 4 were correct. The 1911 Commission’s ruling is not unreasonable or without a rational basis. Appellants’ 1 Motion and reply to the Staff response attacked the rateallocation method and the 2 legality of the right of way fees prev iously approved in Case 12-00020-UT. But the 3 rate allocation method and the le gality of the right of way fees were not at issue in the 4 present reconciliation case, 15-00087-UT. Appe llants’ Motion and reply did not bring 5 to light any new information regarding the reasonableness of the reconciliation of Rate 6 Rider 4. 7 {14} Because the Motion did not offer the Commission any grounds for 8 reconsideration of Case 15-00087-UT, the reconciliation of surcharges including Rate 9 Rider 4, the Commission did not act arbitrarily and capriciously when it denied 10 Appellants’ Motion for Rehearing and Reconsideration. 11 {15} For the reasons set forth herein, we affirm the order of the Commission in this 12

case. 13 {16} IT IS SO ORDERED. 14

___________________________________ 15 CHARLES W. DANIELS, Chief Justice 16 WE CONCUR: 1712 ___________________________________ 1 PETRA JIMENEZ MAES, Justice 2

___________________________________ 3 EDWARD L. CHÁVEZ, Justice 4

___________________________________ 5 BARBARA J. Vigil, Justice 6

___________________________________ 7 JUDITH K. NAKAMURA, Justice 8