F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 19 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
AMIGOS BRAVOS, a nonprofit
corporation and NEW MEXICO
CITIZENS FOR CLEAN AIR AND
WATER, a nonprofit corporation,
Plaintiffs-Appellants,
v. No. 99-2346
ENVIRONMENTAL PROTECTION
AGENCY; CAROL BROWNER,
Administrator of the Environmental
Protection Agency; GREG COOK,
EPA Regional Administrator for
Region VI,
Defendants-Appellees.
ORDER
Before BRORBY , KELLY , and LUCERO , Circuit Judges.
Based upon defendants’ suggestion that this case became moot during
pendency for rehearing because the controversy was resolved by the agency's
issuance of a permit, this court issued an order requiring plaintiffs to show cause
in writing why this appeal should not be dismissed as moot. In responding to this
order, plaintiffs conceded that the case is moot.
Accordingly, the decision of the panel issued January 3, 2001 is vacated
and the opinion is withdrawn. The case is remanded to the district court with
instructions to vacate its judgment and opinion and order granting defendants’
motion to dismiss, dated November 8, 1999. See Stewart v. S. Ry. , 315 U.S. 784
(1942); Duke Power Co. v. Greenwood County , 299 U.S. 259, 267 (1936). The
district court, however, is not divested of jurisdiction to make a determination on
whether plaintiffs are entitled to an award of litigation costs, including attorneys’
fees, under section 505(d) of the Clean Water Act. See Citizens for Responsible
Gov’t State Political Action Comm. v. Davidson , 236 F.3d 1174, 1183 (10th Cir.
2000).
A certified copy of this order shall stand as and for the mandate of this
court. The mandate shall issue forthwith.
Entered for the Court
PATRICK FISHER, Clerk
By:
Keith Nelson
Deputy Clerk
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