UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

AMIGOS BRAVOS, a nonprofit corporation and NEW MEXICO CITIZENS FOR CLEAN AIR AND WATER, a nonprofit corporation,

Plaintiffs-Appellants,

v.

ENVIRONMENTAL PROTECTION AGENCY; CAROL BROWNER, Administrator of the Environmental Protection Agency; GREG COOK, EPA Regional Administrator for Region VI,

Defendants-Appellees.

No. 99-2346

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Accordingly, the decision of the panel issued January 3, 2001 is vacated and the opinion is withdrawn.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