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NEW MEXICO CITIZENS FOR CLEAN AIR v. ESPANOLA MER.

No. 94-2254.

72 F.3d 830 (1996)

NEW MEXICO CITIZENS FOR CLEAN AIR AND WATER; Pueblo of San Juan, Plaintiffs-Appellees, v. ESPANOLA MERCANTILE COMPANY, INC., doing business as Espanola Transit Mix Co., Defendant-Appellant.

United States Court of Appeals, Tenth Circuit.

January 2, 1996.

Attorney(s) appearing for the Case

Grove T. Burnett and Eric Ames, Western Environmental Law Center, Santa Fe, New Mexico, for Plaintiffs-Appellees.

Holly A. Hart of Scheuer, Yost & Patterson, P.C., Santa Fe, New Mexico, for Defendant-Appellant.

Before MOORE, BARRETT, and WEIS, Circuit Judges.

WEIS, Senior Circuit Judge.

In this appeal1, we conclude that one plaintiff's compliance with the pre-suit notice requirements of the Clean Water Act, 33 U.S.C. § 1365(b), does not satisfy the duty of another plaintiff to give notice on its own behalf. Therefore, the non-complying plaintiff cannot be a prevailing party entitled to counsel fees. We also decide that an award of counsel fees must take into account the degree of success...

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