NM High Court denies Indigenous groups’ attempt to block changes to PRC

The New Mexico Supreme Court on Monday denied a challenge made on behalf of Indigenous groups that sought to block a constitutional amendment set to take effect next year.

New Mexico voters approved a constitutional amendment during the November 2020 election that changed membership on the state’s utility regulatory body from being an elected position to one that’s appointed by the governor. It also shrinks the size of the board from five members to three.

A coalition of Indigenous groups asked the state’s highest court to block the change before it takes effect next year, arguing that the amendment’s ballot wording failed to meet accuracy and clarity requirements.

Justices heard oral arguments Monday morning from attorneys representing the Office of the Governor and the Office of the Attorney General, as well as Sarah Shore, an attorney who filed the petition on behalf of the Indigenous groups. The case centered on whether voters understood the wording of the ballot language, and whether they understood they’d be giving up the right to elect people to the Public Regulation Commission.

Shore argued on behalf of three Indigenous women’s groups — Indigenous Lifeways, New Mexico Social Justice & Equity Institute and Three Sisters Collective. She said that the ballot language was misleading and that because the amendment changes how commissioners are selected and also changes the size of the board, voters should have been allowed to decide each item separately.

Following arguments, the court recessed for about 30 minutes before denying Shore’s writ of mandamus, a court order that would have blocked the constitutional amendment.

“The court has concluded that it is appropriate to deny the writ,” Chief Justice C. Shannon Bacon said. “An opinion will follow, explaining our rationale.”

Monday’s decision was delivered because of the time-sensitive nature of the matter, Bacon said. It could be weeks until the court’s written opinion is issued though.

Indigenous groups say changes to utility regulation in NM would favor energy companies

New Mexico voters approved the amendment by a 56% to 44% margin in 2020. The amendment is set to take effect Jan. 1.

The groups represented by Shore expressed concerns that an appointed PRC board would favor the desires of energy companies over protecting sacred land and the Indigenous people who inhabit it, and that the ballot initiative is an attempt to silence Native people by giving energy companies unfettered influence over the PRC.

Shore said she was disappointed by the court’s ruling because it exposes Indigenous people to the potentially dire consequences of increased political and financial influence at the agency making decisions about essential services that every New Mexican depends on.

“We felt like we had really well-grounded legal arguments, and that the rights at stake were very important, so we were disappointed that the court didn’t take a closer look at this,” she said. “It puts my clients back in the place of having to advocate in the Legislature, even though we think, as a matter of law, the Legislature unconstitutionally removed these rights from them.”

Krystal Curley, executive director of Indigenous Lifeways, said it was disheartening to continue to hold this burden from generation to generation.

“What little representation we had was taken away from us in a deceptive manner,” she said.

The constitutional amendment began as bipartisan legislation in 2019 that was co-sponsored by Senate Majority Leader Peter Wirth, a Democrat from Santa Fe. In an interview Monday, Wirth said he thought the Supreme Court made the right decision.

“Given how far down the road we are in the process, given the overwhelming support for this proposal initially in the Legislature and given that the voters adopted it, I think it’s the right decision made today,” he said.

Wirth said a key impetus behind the original legislation was to reduce attempts by outside groups to influence the commission by funding PRC commissioner’s campaigns.

“We’ve seen more and more outside money being poured into the PRC race, and so we tried to strike the right balance here,” he said.

Because serving on the PRC requires a certain level of technical expertise, Wirth said having the governor select candidates from a list of qualified people will strengthen the commission. And by having the positions appointed, he feels a bigger pool of well-qualified people will be willing to serve on the board.

“Politicians are good at getting elected, but that doesn’t translate, necessarily, into being the best regulator,” Wirth said. “The goal is to get the PRC out of the political process.”