This decision was not selected for publication in the New Mexico Reports. Please see Rule 12- 1 405 NMRA for restrictions on the citation of unpublished decisions. Please also note that this 2 electronic decision may contain computer-generated errors or other deviations from the official 3 paper version filed by the Supreme Court and does not include the filing date. 4 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 5
Opinion Number: 6 Filing Date: 7

NO. 31,200 8
PUBLIC SERVICE COMPANY OF NEW MEXICO , 9 Appellant, 10

v. 11
NEW MEXICO PUBLIC REGULATION COMMISSION , 12 Appellee, 13
and 14
INTERNATIONAL BROTHERHOOD OF 15 ELECTRICAL WORKERS (IBEW), WESTERN 16 RESOURCE ADVOCATES (WRA), COALITION 17 FOR CLEAN AFFORDABLE ENERGY (CCAE), 18 KROGER, CO., BOARD OF REGENTS OF UNM (UNM), 19 COMMUNITY ACTION NM AND SENIOR INTERVENORS 20 (CANM/SI), NM INDUSTRIAL ENERGY CONSUMERS (NMIEC), 21 AND OFFICE OF THE ATTORNEY GENERAL , 22
Intervenors. 23APPEAL FROM THE NEW MEXICO PUBLIC REGULATION 1 COMMISSION 2

Patrick T. Ortiz 3 Benjamin Phillips 4 Albuquerque, NM 5 Miller Stratvert, P.A. 6 Robert H. Clark 7 Brian J. Haverly 8 Albuquerque, NM 9 for Appellant 10

Robert Y. Hirasuna 11 David P. Barton 12 Santa Fe, NM 13 for Appellee 14

Law Office of Justin Lesky 15 Justin Lesky, Jr. 16 Albuquerque, NM 17
Steven S. Michel 18 Santa Fe, NM 19
Senior Citizen’s Law Office 20 Micah Rose 21 Angelica Anaya Allen 22 Albuquerque, NM 23 Comeau, Maldegen, Templeman & Indall, L.L.P. 242 William P. Templeman 1 Santa Fe, NM 2
Bruce C. Throne 3 Santa Fe, NM 4

Peter J. Gould 5 Santa Fe, NM 6 Gary K. King, Attorney General 7 Jeffery S. Taylor, Assistant Attorney General 8 Santa Fe, NM 9
for Intervenors 10
DECISION 11 BOSSON, Justice. 12
{1} Public Service Company of New Mexico (PNM) appeals from a Final Order of 13 the Public Regulatory Commission (PRC) gran ting PNM a rate increase but rejecting 14 certain increases requested by PNM relate d to decommissioning costs associated with 15 restoring certain coal mine sites. We affirm the Final Order of the PRC. 16 BACKGROUND 17
{2} In 2001, negotiations began between PNM, PRC, and several other parties 18 regarding retail electric rates, resulting in the adoption of a Stipulated Agreement in 19 2003. In the Stipulated Agreement, P RC authorized PNM to recover “up to” $100 20 million out of a projected $113 million in decommissioning costs associated with 213 restoring coal mine sites adjacent to its San Juan and Four Corners plants. These costs 1 were to be amortized over a 17-year period. 2
{3} The 2003 Stipulated Agreement states: 3
PNM shall be authorized to recover in these Stipulated Rates [i.e., the 4 rates approved in Case 3137] and fu ture retail rates its New Mexico 5 jurisdictional share of the decommissi oning costs associated with the San 6 Juan, La Plata and Navajo Surface Coal Mines as shown on Attachment 7 B. PNM shall be authorized to recover up to $100 million of the 8 costs shown on Attachment B, compri sed of approximately $69 million 9 in surface coal mine reclamation costs . . . and approximately $31 million 10 of contract buyout costs . . . . 11
{4} On February 21, 2007, PNM filed the pr esent rate case with PRC seeking to 12 recover, among other things, an additional $77.3 million for decommissioning costs 13 at its San Juan and Four Corners plants. PNM argued that the increase was justified 14 based on updated projections for its reclamation costs at these plants. Based on the 15 review of a hired consultant and the anal ysis of a mining consultant, PNM projected 16 that its actual decommissioning costs woul d be $158.3 million for the two plants, a 17 substantial increase from its original projection of $113 million. PNM sought to 18 recover $39.6 million of these increased cost s from its retail rate payers through a rate 19 increase. PNM proposed that the effects of the additional costs could be mitigated by 20 extending the San Juan amortization sche dule to 33 years while reducing the Four 21 Corners amortization schedule to 15 years. PNM also sought to recover an additional 22 $31.2 million in decommissioning expenses th at it had already incurred in excess of 234 the amount approved by the Stipulated Agreement for its San Juan mines. 1
{5} Following statutory procedure, PRC a ssigned the case to a hearing examiner. 2 See NMSA 1978, § 62-8-7(C) (2007). Extens ive discovery followe d, and after two 3 weeks of hearings, the hearing examin er issued a Recommended Decision on March 4 6, 2008. PNM and others filed excepti ons to the Recommended Decision, and on 5 April 24, PRC issued a revised Final Order Partially Adopting Recommended 6 Decision. PRC then issued its Final Or der on May 1, 2008, which granted PNM a rate 7 increase of $34.4 million. PRC rejected PNM’s request for the decommissioning cost 8 increase and the amortization changes, st ating that the 2003 Stipulated Agreement 9 contained a cap that prevents PNM from recovering more than $100 million in 10 decommissioning costs. 11
{6} PNM filed a motion for rehearing with PRC, which was refused on May 29, 12 2008, as a result of PRC’s failure to act within twenty days. See NMSA 1978, § 62- 13 10-16 (1953) (“[A] failure by the commission to act upon such application within that 14 period shall be deemed a refusal thereof.”) . PNM then filed a Notice of Appeal on 15 June 27, 2008, urging this Court to vacat e PRC’s Final Order. Initially, PNM had 16 included a second issue in its appeal; howev er, that matter was settled prior to oral 17 arguments. 185 DISCUSSION 1 Standard of Review 2
{7} On appeal of an administrative order, the appealing party bears the burden of 3 showing that the order is unlawful or unreasonable. NMSA 1978, § 62-11-4 (1993). 4 We have held that an or der may be unlawful or unreas onable when the decision was 5 “arbitrary and capricious, not supported by substantial evidence, or is an abuse of 6 discretion by being outside the scope of the agency’s authority, clear error, or 7 violative of due process.” In re Zia Natural Gas Co. , 2000-NMSC-011, ¶ 4, 128 8 N.M. 728, 998 P.2d 564. In highly technical matters, such as utility rate 9 determination, an agency’s decision is accorded “considerable deference.” El Vadito 10 de los Cerrillos Water Ass’n v. N.M. Pub. Serv. Comm’n , 115 N.M. 784, 787, 858 11 P.2d 1263, 1266 (1993). We view the evidence in the light most favorable to PRC’s 12 decision. In re Zia Natural Gas Co. , 2000-NMSC-011, ¶ 4. 13
{8} By statute, PRC is granted broad and ex clusive authority to regulate rates for 14 public utilities. NMSA 19 78, § 62-6-4(A) (2003) (“The commission shall have 15 general and exclusive power and jurisdic tion to regulate and supervise every public 16 utility in respect to its rates and service regul ations and in respect to its securities . . 17 . and to do all things necessary and conve nient in the exercise of its power and 18 jurisdiction.”). PRC is afforded consider able discretion in dete rmining whether rates 19

are just and reasonable. I n re Otero County Elec. Coop. , 108 N.M. 462, 464, 774 P.2d 201 PNM also references New Mexico preced ent addressing the standard of review 16 in general contract law cases. See Alldredge v. Alldredge , 20 N.M. 472, 151 P. 311 17 (1915) (divorce case in which a stipulat ed agreement drafted by the husband’s 18 attorney was challe nged by the wife, who had signe d it without the benefit of 19 counsel); Mark V., Inc. v. Mellekas , 114 N.M. 778, 781-82, 845 P.2d 1232, 1235-36 20 (1993) (contractual dispute between a r eal estate agency and a broker over a 21 commission); Schaefer v. Hinkle , 93 N.M. 129, 131, 597 P.2d 314, 316 (1979). 22 6 1050, 1052 (1989). 1
{9} PNM argues, however, that the issue on appeal is really on e of contractual 2 interpretation—whether PRC correctly interpreted the language in the S t ipulated 3 Agreement—and should be reviewed de novo. It is well settled in New Mexico that 4 the ques tion of whether an a mbiguity is present in a contract is a question of law, 5 reviewed de novo. Env’t Control , Inc. v. City of Santa Fe , 2002-NMCA-003, ¶ 14, 6 131 N.M. 450, 38 P.3d 891. 1 Without stating that th e Stipulated Agreement is 7 ambiguous, PNM argues that the language in the Agreement was not intended to be 8

a cap, and that PRC’s contrary inter p retation will result in an unintended waiver of 9 PNM’s right to seek full recovery of its costs in violation of due process. Ostensibly 10 then, PNM asserts that PRC’s Final Order represents, in part, PRC’s interpretation of 11 an ambiguous contract. 12
{10} We agree that the initial determination of whether a stipulated agreement is 13 ambiguous is a question of law, regardless of whether that determination is made by 14 a trial court or an administrative body. A ccordingly, this Court will apply a de novo 15 standard of review to that limited question. However, we do not propose to otherwise 167 open the door for de novo challenges to administrative decisions under the guise of 1 applying contract law. 2
{11} Applying a de novo standard of review to the threshold question of whether the 3 Stipulated Agreement is ambiguous, we agree with PNM that paragraph 13 is 4 ambiguous because it is reasonably and fairly susceptible of different constructions. 5 Env’t Control, Inc. v. City of Santa Fe , 2002-NMCA-003, ¶ 14, 131 N.M. 450, 38 6 P.3d 891. That does not end our inquiry, however. “Once the agreement is found to 7 be ambiguous, the meaning to be assigned th e unclear terms is a question of fact.” 8 Mark V., Inc. v. Mellekas , 114 N.M. 778, 781, 845 P.2d 1232, 1235(1993). Therefore, 9 when an administrative agency , in its adjudicative capacity , makes findings of fact as 10 to the meaning of an ambiguous contract te rm, we apply “a whole record review to 11 determine if the agency’s factual determin ation is supported by substantial evidence.” 12 Morningstar Water Users Ass’n. v. N.M. Pub. Util. Comm’n , 120 N.M. 579, 583, 904 13 P.2d 28, 32 (1995). In performing a whole record review, we may not “substitute 14 [our] judgment for that of the administra tive agency,” and we view “all evidence, 15 favorable and unfavorable, ... in the light mo st favorable to the agency's decision.” 16 Tallman v. Arkansas Best Freight , 108 N.M. 124, 129, 767 P. 2d 363, 368 (Ct. App. 17 1988). 188 Substantial Evidence 1
{12} Coal mine decommissioning costs were but one of numerous rate issues 2 addressed in the 2003 Stipulated Agreement. PNM does not challenge the Stipulated 3 Agreement as a whole, but rather, challe nges PRC’s conclusion that the Stipulation 4 contains a cap that prev ents PNM from recovering d ecommissioning costs in excess 5 of $100 million. PRC’s Final Order is acco rded considerable deference, and we 6 confine our review to the question of whet her PRC’s interpretation of the Stipulated 7 Agreement is supported by substantial eviden ce. Substantial evidence is such that 8 “a reasonable mind might accept as ad equate to support a conclusion.” N. M. Indus. 9 Energy Consumers v. N. M. Pub. Serv. Comm’n , 104 N.M. 565, 570, 725 P.2d 244, 10 249 (1986). On review, this Court will not re-weigh the evidence. In re Otero County 11 Elec. Coop. , 108 N.M. at 464, 774 P.2d at 1052. On appeal, PNM bears the burden 12 of showing that the order is unlawful or unr easonable. Section 62-11-4. If this Court 13 finds a part of the order unreasonable or unlaw ful, it must annul the entire order if the 14 end result of the Final Order is unreasona ble or unlawful. NMSA 1978, § 62-11-5 15 (1993); In re Petition of PNM Gas Servs. , 2000-NMSC-012, ¶ 10, 129 N.M. 1, 1 P.3d 16 383. 17
{13} At issue in this appeal is whethe r substantial evidence supports PRC’s 18 conclusion that language in paragraph 13 of the stipulated agreement, authorizing 19 PNM to “recover up to $100 million of the costs” for decommissioning, acts as a cap 209 on the amount of decommissioning costs that PNM can recover. PNM argues that the 1 language should be interpre ted to allow PNM to rec over “up to” $100 million without 2 challenge, but not as a waiver of PNM’s right to seek recovery for additional costs in 3 excess of $100 million in a future rate case. 4
{14} In support of its own interpretation, PNM states that the language of the 5 document as a whole must be considered. PNM points out that in paragraph 12 of the 6 Stipulated Agreement—immediately precedi ng the challenged paragraph—the parties 7 had expressly used the specific phrase “wai ved its rights to seek recovery.” PNM 8 argues that if had intended to waive its rights to seek recovery for additional 9 decommissioning costs in the future, it would have used similarly specific language 10 in paragraph 13. PNM conte nds that construing the langua ge in paragraph 13 as a cap 11 would render it inconsistent w ith paragraph 12. In addition, PNM argues that if “up 12 to” was meant to be a cap, PNM would not have been required to make annual filings 13 of cost estimates, rather than simply reporting the actual amounts spent until $100 14 million was reached. 15
{15} However, “although the evidence may support inconsistent findings, we will 16 not disturb the agency's finding if supported by substantial evidence on the record as 17 a whole.” Herman v. Miners’ Hosp. , 111 N.M. 550, 552, 807 P.2d 734, 736 (1991). 18 Therefore, we look to the evidence reli ed upon by PRC in support of its conclusion 19 that the Stipulated Agreement limited PNM’s recovery at $100 million. 2010 {16} The Agreement was extensively reviewed and negotiated as part of a previous 1 rate case that included a review by a Commission Hearing Examiner after a full 2 hearing, followed by approval of the Commissi on, in addition to the hearing process 3 afforded as part of the most recent Final Order. PRC notes that it authorized recovery 4 at this set price, which was full recovery of the New Mexico jurisdictional share of the 5 total costs estimated at the time of the Agreement. PRC also cites testimony in 6 support of the Final Order and the Stipulat ed Agreement, including statements by the 7 New Mexico Attorney General and vari ous municipalities in opposition to PNM, as 8 well as testimony from PNM representa tives who referred to the $100 million 9 provision as a “cap.” In addition, PRC not es that PNM was assured a significant tax 10 break when the Commission approved the $100 m illion recovery. PRC states that the 11 language of the Stipulated Agreement used the term “ future retail rates,” which clearly 12 capped the amount then and into the future. Also, the certification of the Stipulated 13 Agreement Case No. 3137 states that these are final costs. 14
{17} PNM does not dispute that evidence. Instead, PNM argues th at PRC incorrectly 15 interpreted paragraph 13 as a waiver. As we stated, however, the role of this Court 16 is not to re-weigh evidence, but rather to evaluate the evidence in the record as a 17 whole to determine if a reasonable mind could accept PRC’s conclusion. PNM bears 18 the burden of overcoming that conclusion. Because PRC can point to evidence in the 19 record, including statements by both PNM and PRC representatives supporting 2011 paragraph 13 as a cap, then a reasonabl e mind might accept that conclusion as 1 supported by adequate, substantial evidence. While the term “waiver” might have 2 made the provision clearer, l ack of the term does not pr eclude a reasonable mind from 3 drawing the conclusion that the provision can be interpreted as a cap. Therefore, 4 PRC’s Final Order should stand because it is supported by substantial evidence. 5 Due Process 6
{18} PNM argues that its coal mine decommissioning expense is a necessary cost of 7 doing business, and that its right to recover the full value of such costs is protected by 8 due process of law and the prohibiti on against taking property without just 9 compensation. Although PNM acknowledges that it can re linquish its right to seek 10 full recovery of its decommissioning costs, it argues that such a waiver must be 11 express and unequivocal. PNM states that the Stipulated Agreement does not contain 12 an unequivocal waiver of its rights, a nd therefore to interpret the Stipulated 13 Agreement as a cap would unconstitutionally waive PNM’s right to seek the recovery 14 of its actual costs and amount to a taking. 15
{19} Case law establishes that due process is a flexible concept, the essence of which 16 is the right to be heard at a meaningf ul time and in a meaningful manner. N. M. Indus. 17 Energy Consumers , 104 N.M. at 568, 725 P.2d at 247. In the public utility context, 18 the New Mexico Legislature has set forth an evidentiary hearing process that the 19 agency must follow in all rate-setting matters. NMSA 1978, §§ 62-10-1 to -16 (1941, 2012 as amended, repealing §§ 62-10-7, -15). Wh en this process is followed, the necessary 1 elements of procedural due process are satisfied. 2
{20} In this case, PRC does not challe nge the legitimacy of PNM’s coal 3 decommissioning costs. Rather, PRC argue s that those costs approved as a rate 4 increase are regulated by the Commission and were already subjected to extensive 5 review following statutory protocol that in cluded an evidentiary hearing. PNM does 6 not challenge the validity of the review process. Therefore, we find no basis to 7 overturn PRC’s Final Order on procedural due process grounds. 8
{21} Whether PRC’s denial of PNM’s reque sted rate increase results in an 9 unconstitutional taking is a separa te question. As our Cour t of Appeals observed, “the 10 Legislature has substituted a legislatively pr escribed method for setting prices in place 11 of the market forces that otherwise woul d determine the prices a business may charge 12 consumers. In the rate-making context, [rate-making] has constitutional implications: 13 due process of law requires that rates be set high enough to allow investors the 14 opportunity to recover a return on their i nvestment over and above the enterprise's 15 costs of operation.” Bishop v. Evangelical Lutheran Good Samaritan Soc’y , 2008- 16 NMCA-033, ¶ 9, 143 N.M. 640, 179 P.3d 1248. PRC is charged with the 17 responsibility to “ensure that rates are neither unreasonably high so as to unjustly 18 burden ratepayers with excessive rates nor unreasonabl y low so as to constitute a 19 taking of property without just compen sation or a violation of due process by 2013 preventing the utility from earning a reasonable rate of return on its investment.” In 1 re Petition of PNM Gas Servs. , 2000-NMSC-012, ¶ 8. Reasonableness is also “the 2 test for determining the point at wh ich a rate has become unconstitutionally 3 confiscatory.” Behles v. N.M. Pub. Serv. Comm’n , 114 N.M. 154, 161, 836 P.2d 73, 4 80 (1992) (holding that the Commission did not violate the water company’s right to 5 due process by denying the rate increase). 6
{22} To set a just and reasonable rate, the Commission must balance the interests of 7 the investor and ratepayer. Id. The commission is afforded considerable discretion 8 in determining whether rates are just and reasonable. In re Otero County Elec. Coop. , 9 108 N.M. at 464, 774 P.2d at 1052. The appea ling party bears the burden of showing 10 a commission decision is unreasonable or unlawful. Section 62-11-4 (1965). 11
{23} In this case, PNM does not challenge that the rates set by PRC were 12 unreasonable; rather, PNM argues that it did not intend to limit the amount of 13 decommissioning costs that it could recover in the future. However, for the reasons 14 stated above, we conclude that substan tial evidence supports the PRC’s finding that 15 paragraph 13 of the Stipulated Agreemen t caps the amount of decommissioning costs 16 that PNM may recover. Unde r the totality of the facts and circumstances, the PRC’s 17 Final Order falls within that “zone of reasonableness;” it is not a confiscation of 18 PNM’s property interest. 19 CONCLUSION 2014 {24} We affirm the Final Order of the PRC. 1
{25} IT IS SO ORDERED. 2

3 RICHARD C. BOSSON, Justice 4
WE CONCUR: 5 6
7 EDWARD L. CHÁVEZ, Chief Justice 8

9 PATRICIO M. SERNA, Justice 10

11 PETRA JIMENEZ MAES, Justice 12

13 CHARLES W. DANIELS, Justice 14