FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 22, 2015 _________________________________ Elisabeth A. Shumaker Clerk of Court EMORY RUSSELL; STEVE LYMAN; GARY KELLEY; LEE MALLOY; LARRY ROBINSON; GARY HAMILTON; ART SCHAAP; GUY SMITH,

Plaintiffs - Appellants, No. 15-2042 v. (D.C. No. 1:13-CV-00760-KG-LAM) (D. N.M.) THE NEW MEXICO INTERSTATE STREAM COMMISSION; THE NEW MEXICO ENERGY, MINERALS AND NATURAL RESOURCES DEPARTMENT, State Parks Division; ESTEVAN LOPEZ, Individually and in his official capacity as Director of the New Mexico Interstate Stream Commission; TOMMY MUTZ, Individually, and in his official capacity, as Director of the New Mexico State Parks Division,

Defendants - Appellees. _________________________________

ORDER _________________________________

Before TYMKOVICH, Chief Judge, HOLMES and PHILLIPS, Circuit Judges. _________________________________

This matter is before the court on appellants’ Petition for Rehearing. See

Fed. R. App. P. 40. Upon consideration of the petition and the appellees’ response in

opposition, the petition is granted. The Order & Judgment issued originally on December

2, 2015, is withdrawn, and the amended decision attached to this order shall take its place. The Clerk is directed to file the appellees’ response as of the date it was received

and issue the amended Order & Judgment nunc pro tunc to the original filing date.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk

2 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 2, 2015 _________________________________ Elisabeth A. Shumaker Clerk of Court EMORY RUSSELL; STEVE LYMAN; GARY KELLEY; LEE MALLOY; LARRY ROBINSON; GARY HAMILTON; ART SCHAAP; GUY SMITH,

Plaintiffs - Appellants, No. 15-2042 v. (D.C. No. 1:13-CV-00760-KG-LAM) (D. N.M.) THE NEW MEXICO INTERSTATE STREAM COMMISSION; THE NEW MEXICO ENERGY, MINERALS AND NATURAL RESOURCES DEPARTMENT, State Parks Division; ESTEVAN LOPEZ, Individually and in his official capacity as Director of the New Mexico Interstate Stream Commission; TOMMY MUTZ, Individually and in his official capacity as Director of the New Mexico State Parks Division,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, Chief Judge, HOLMES and PHILLIPS, Circuit Judges. _________________________________

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. This case involves the termination of dock license agreements on New Mexico’s

Ute Reservoir. Plaintiffs appeal from three orders of the district court, the combined

effect of which was to grant summary judgment in favor of defendants on plaintiffs’ state

and federal claims challenging the terminations. We dismiss this appeal for lack of

jurisdiction.

I. Background

Plaintiffs entered into license agreements with the New Mexico Interstate Stream

Commission that permitted them to maintain private boat docks at Ute Reservoir in Ute

Lake State Park. Ute Reservoir is managed by the Commission and the State Parks

Division of the New Mexico Energy, Minerals, and Natural Resources Department

(“Division”). In May 2013, defendants informed plaintiffs by letter that their license

agreements were being terminated because the Division had determined that the docks

had become a threat to public safety. A drought had yielded extremely low water levels

at the reservoir, “grounding” the docks and causing them structural damage.

Plaintiffs sued, asserting a federal claim for violation of their due process rights

under 42 U.S.C. § 1983 and a state claim for breach of contract. Both sides moved for

summary judgment. In short, the court determined plaintiffs did not have a cognizable

property interest in the license agreements, and it granted summary judgment in

defendants’ favor on the due process claim. It dismissed the contract claim without

prejudice. And it awarded defendants their costs and attorney fees pursuant to the

indemnity provision in the license agreements.

2 Plaintiffs filed a Motion to Alter or Amend Judgment, arguing 42 U.S.C. § 1988

prohibited awarding attorney fees incurred in connection with their § 1983 claim based

on the license agreements’ indemnity provision and that the indemnity provision was

unconscionable. The court agreed with the former but not the latter, and amended its

previous award by limiting defendants to costs and attorney fees incurred in connection

with the contract claim only. In accordance with the court’s order, defendants submitted

an application for attorney fees and costs incurred in relation to the contract claim. The

court had not yet ruled on the application when plaintiffs filed their notice of appeal.

After briefing was completed in this appeal, the district court denied defendants’

application, concluding that any award based on the license agreements should be

determined by the state court, where plaintiffs had refiled their contract claim.

Plaintiffs contend the district court erred by concluding (1) they did not have a

property interest in the license agreements and (2) the indemnity provision of license

agreements was neither procedurally nor substantively unconscionable.

Defendants, in turn, argue that we lack jurisdiction to consider plaintiffs’ first

argument because they did not timely appeal the district court’s August 2014 orders

disposing of their due process claim. As explained below, we agree with defendants’

jurisdictional argument and therefore dismiss the appeal as to the due process claim. In

addition, we conclude that the district court’s denial of the application for attorney fees

and costs rendered moot plaintiffs’ contention with respect to the indemnity provision.

3 II. Jurisdiction over the Due Process Claim

Where the United States is not a party, a civil notice of appeal must be filed within

thirty days of the order or judgment being appealed. Fed. R. App. P. 4(a)(1). “A timely

filed notice of appeal is an absolute prerequisite to our jurisdiction.” Utah Women’s

Clinic, Inc. v. Leavitt, 75 F.3d 564, 566 (10th Cir. 1995). Here, the orders granting

summary judgment on plaintiffs’ due process claim were entered on August 29, 2014, yet

plaintiffs did not file their notice of appeal until March 4, 2015. Plaintiffs contend that

their Motion to Alter or Amend Judgment, properly construed as a Rule 59(e) motion,

tolled the thirty-day period until the entry of the order disposing the motion. However,

even if we construe plaintiffs’ motion as a Rule 59(e) motion, it is well established that “a

Rule 59(e) motion, challenging only the award of costs and attorney’s fees, does not toll

the time for a merits appeal.” Id. at 567. In an attempt to circumvent this clear

precedent, plaintiffs assert that their motion is distinguishable from a typical challenge to

an award of costs and attorney fees because it addressed the substantive correctness of the

district court’s legal reasoning. But the correctness of plaintiffs’ legal argument does not

change the fact that their motion challenged only costs and attorney fees. See Yost v.

Stout, 607 F.3d 1239, 1243 (10th Cir. 2010) (concluding that a motion to alter or amend

the judgment challenging only the court’s denial of fees – and not the court’s judgment

on its merits – did not toll the time in which an appeal could be taken on the merits).

Therefore, Yost and Utah Women’s Clinic compel the conclusion that we lack jurisdiction

to reach the merits of plaintiffs’ due process claim in this appeal.

4 III. Jurisdiction over the Indemnity Provision Issue

Mootness is jurisdictional. Citizen Center v. Gessler, 770 F.3d 900, 906 (10th Cir.

2014), cert. denied, 135 S.Ct. 1896 (2015). “A federal court must order dismissal for

mootness if the controversy ends prior to a decision even if a justiciable controversy

existed when the suit began.” Id. (citing Jordan v. Sosa, 654 F.3d 1012, 1023 (10th Cir.

2011)). Here, the district court ultimately decided not to award attorney fees and costs

based on the indemnity provision, thereby ending this part of the underlying controversy

that plaintiffs sought to have addressed in this appeal. Thus, plaintiffs’ contention that

the indemnity provision is unconscionable has been rendered moot, and we lack

jurisdiction to address it.

The appeal is dismissed.

Entered for the Court

Timothy M. Tymkovich Chief Judge

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