UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

EAGLE AIR MED CORPORATION; 

SCENIC AVIATION, INC.,

 Plaintiffs–Appellants,

v.

JAMES B. MARTIN, Executive Director 

of Colorado Department of Public Health 

and Environment, in his official capacity; 

D. RANDAL KUYKENDALL, Chief of 

Emergency Medical and Trauma Services 

Section, Colorado Department of Health 

and Environment, in his official capacity,

 Defendants–Appellees.

No. 09-1125

(D.C. No. 1:08-CV-00532-LTB)

(D. Colo.)

ORDER AND JUDGMENT*

Before LUCERO, HOLLOWAY, and HOLMES, Circuit Judges. 

 

Eagle Air Med Corporation (“Eagle”) and Scenic Aviation, Inc. appeal a district 

court order dismissing their case as moot. Eagle initiated this action after the Colorado 

 

* This order and judgment is not binding precedent, except under the doctrines of 

law of the case, res judicata, and collateral estoppel. This court generally disfavors the 

citation of orders and judgments; nevertheless, an order and judgment may be cited under 

the terms and conditions of 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 13, 2010 

Elisabeth A. Shumaker 

Clerk of Court
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Department of Public Health and Environment (“CDPHE” or the “Department”) began 

an investigation jeopardizing Eagle’s air ambulance license. The Department dropped 

that investigation when a non-party, the Commission on Accreditation of Medical 

Transport Systems (“CAMTS”), agreed to continue its accreditation of Eagle. Because 

we agree with the district court that the voluntary cessation doctrine does not apply, we 

affirm. 

I

 Eagle operates an air ambulance service in Colorado under a license issued by the 

CDPHE.1

 Under the Colorado Emergency Medical and Trauma Services Act and its 

implementing regulations, air ambulance licensees must be accredited by CAMTS, a nongovernmental organization that is not a party to this suit. Colo. Rev. Stat. §§ 25-3.5-101, 

25-3.5-307(1)(a); 6 Colo. Code Regs. §§ 1015-3-13.2(5), -13.5. Eagle first obtained full 

CAMTS accreditation in 2001. 

On November 30, 2007, CAMTS sent a letter withdrawing Eagle’s accreditation 

effective thirty days from receipt. Eagle initiated CAMTS’ appeal process and notified 

CDPHE of the pending withdrawal. The Department responded by letter, acknowledging 

CAMTS’ “intention to withdraw accreditation from” Eagle and stating that its “office has 

initiated an investigation of this matter.” CDPHE regulations permit it to revoke or 

 1

 Scenic Aviation, Inc., provides aviation services to enable Eagle to operate, and 

is a plaintiff-appellant in this suit. We use “Eagle” to refer generally to both plaintiffappellants. 
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suspend an air ambulance license if a licensee fails to maintain CAMTS accreditation. 6 

Colo. Code Regs. § 1015-3-13.13(1), (3)(F). 

CAMTS agreed to defer its withdrawal of Eagle’s accreditation and to conduct a 

hearing on the matter. Before any hearing occurred, however, Eagle filed suit against 

CDPHE officials James Martin and D. Randal Kuykendall in their official capacities, 

claiming that Colorado’s air ambulance licensing requirements are preempted by the 

Airline Deregulation Act of 1978, the Federal Aviation Act, and related federal 

regulations. On defendants’ motion, the district court stayed the case pursuant to 

Younger v. Harris, 401 U.S. 37 (1971), pending the Department’s investigation. 

On July 16, 2008, Eagle and CAMTS entered into a consent agreement under 

which CAMTS extended Eagle’s accreditation to July 14, 2009. When the Department 

learned of the consent agreement, it notified Eagle Air that “the investigation initiated by 

[the] agency [had] concluded and no administrative action [would] be taken at this time.” 

Eagle requested the district court lift the previously imposed stay. 

Once the stay was lifted, defendants moved to dismiss the case as moot. Eagle 

argued that the voluntary cessation exception to mootness applied because CDPHE 

terminated the investigation of its own accord. It further claimed that defendants failed to 

show that the challenged conduct could not reasonably be expected to recur. 

 The district court rejected Eagle’s position. It concluded that Eagle’s air 

ambulance license was no longer subject to an imminent threat of revocation and that the 

voluntary cessation doctrine did not apply because CAMTS’ actions—not CDPHE’s—
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mooted the case. Accordingly, the court granted defendants’ motion to dismiss. Eagle 

timely appealed. 

II 

A

 Mootness is a jurisdictional issue: “Without a live, concrete controversy, we lack 

jurisdiction to consider claims no matter how meritorious.” Mink v. Suthers, 482 F.3d 

1244, 1253 (10th Cir. 2007); see also Arizonans for Official English v. Arizona, 520 U.S. 

43, 67 (1997) (“[A]n actual controversy must be extant at all stages of review, not merely 

at the time the complaint is filed.” (quotation omitted)). “The core question in [a] 

mootness inquiry is whether granting a present determination of the issues offered will 

have some effect in the real world.” Kennecott Utah Copper Corp. v. Becker, 186 F.3d 

1261, 1266 (10th Cir. 1999) (quotation and alteration omitted). We review a district 

court’s mootness determination de novo. See Chihuahuan Grasslands Alliance v. 

Kempthorne, 545 F.3d 884, 891 (10th Cir. 2008). 

 The district court held that Eagle did “not argue that the general principles of the 

doctrine of mootness are not present in this case . . . . Rather, [Eagle] argue[d] that the 

‘voluntary cessation’ exception to this doctrine is applicable.” Eagle challenges this 

conclusion on appeal, citing to several portions of its response to defendants’ motion to 

dismiss. In particular, Eagle contends that it preserved the general mootness issue when 

it argued: 

The defendants still enforce Colorado’s air ambulance licensing 
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requirements, including the CAMTS accreditation requirement, thus 

jeopardizing [Eagle’s] rights to carry out air transport in Colorado to the 

full scope of [its] federal authorization. The [p]laintiffs in the current case 

have not changed their behavior; Eagle is still being “reviewed” by 

CAMTS and faces a CAMTS reaccreditation requirement also in July, 

2009. 

Although this snippet of text appears somewhat related to general mootness 

principles, it is squarely aimed at addressing exceptions to mootness when read in 

context. The above-quoted passage immediately follows Eagle’s attempt to distinguish 

two cases cited by defendants, Disability Law Center v. Millcreek Health Center, 428 

F.3d 992 (10th Cir. 2005), and Lane v. Simon, 495 F.3d 1182 (10th Cir. 2007), as cases 

in which “the plaintiff withdrew its request for relief voluntarily—not where the 

defendant voluntarily ceased its allegedly wrongful behavior.” Both cases concerned the 

“capable of repetition, yet evading review” exception to mootness. See Lane, 495 F.3d at 

1187; Disability Law Ctr., 428 F.3d at 996. Against this backdrop, Eagle’s argument that 

“[p]laintiffs in the current case have not changed their behavior” is a clear reference to 

this exception.

Overall, Eagle’s response focused primarily on its argument that defendants bore a 

“formidable burden” under the voluntary cessation doctrine to make “absolutely clear 

that the allegedly wrongful behavior could not reasonably be expected to recur,” quoting 

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 

190 (2000). Eagle argued repeatedly that defendants failed to satisfy this burden. Many 

of the statements cited by Eagle in support of its preservation argument refer directly to 
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Laidlaw’s “reasonably be expected to recur” language. 

Further, the passage upon which Eagle relies is sandwiched between discussions 

of the Laidlaw standard for voluntary cessation. Immediately before Eagle discusses 

Lane and Disability Law Center, it argues that defendants’ statements fail to show that 

“the allegedly wrongful behavior cannot reasonably be expected to recur.” Immediately 

after the quoted passage, it states, “The Tenth Circuit Court of Appeals has applied the 

principles set forth in Laidlaw, supra, cited above in numerous cases.” Eagle then 

discusses several cases from this circuit applying the voluntary cessation doctrine. 

Other statements cited by Eagle discuss the likelihood that the harm alleged will 

recur rather than the imminence of any present threat. For example, Eagle argued that 

defendants “have the power to reinstitute the jeopardization of Eagle’s Colorado license.” 

Likewise, Eagle concluded its mootness discussion by stating that when defendants’ 

“wrongful actions recur, as they can reasonably be expected to do, [Eagle’s] right to carry 

out their air transport business in Colorado will again be in serious jeopardy.” Had Eagle 

been arguing general mootness instead of the voluntary cessation doctrine, one would 

expect Eagle to argue that its license was in imminent jeopardy, not that defendants could 

potentially place it in jeopardy. Similarly, Eagle’s statements regarding defendants’ 

continued enforcement of the challenged accreditation requirement are most naturally 

read as relevant to the likelihood that the allegedly wrongful behavior could recur—a 

voluntary cessation argument. 

Eagle did not identify the standards for general mootness in its briefing before the 
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district court, nor did it discuss any cases concerning whether a non-immediate but 

potential governmental action is sufficient to avoid dismissal on mootness grounds.2

 

Having reviewed Eagle’s response to defendants’ motion to dismiss, we agree with the 

district court: Eagle did not argue that its case remained live under general principles of 

mootness. 

Because Eagle did not advance this argument below, we will not consider it on 

appeal. See Bancamerica Commercial Corp. v. Mosher Steel of Kan., Inc., 100 F.3d 792, 

798-99 (10th Cir. 1996). Eagle’s assertions regarding the voluntary cessation doctrine do 

not suffice to preserve an argument that its case is not moot as a general matter. An 

argument “that falls under the same general category as an argument presented at trial or 

presents a theory that was discussed in a vague and ambiguous way . . . will not be 

considered on appeal.” Id. (quotations omitted).3

 

B

 Eagle further contends that the district court erred in declining to apply the 

 2

 Eagle did not argue below, and does not contend on appeal, that the costs of 

complying with Colorado’s air ambulance licensing regime defeat defendants’ mootness 

argument. 

3

 Even on appeal, Eagle barely addresses general mootness principles. It devotes 

several pages of its opening brief to its argument that the general mootness point was 

preserved, but a mere two sentences, with a single citation to authority, to the proposition 

that its case is not moot as a general matter. See Wilburn v. Mid-South Health Dev., Inc., 

343 F.3d 1274, 1281 (10th Cir. 2003) (“We . . . will not consider issues that are raised on 

appeal but not adequately addressed.”). 
-8- 

voluntary cessation doctrine. “An exception to the mootness doctrine can occur when a 

defendant voluntarily ceases a challenged action. This exception traces to the principle 

that a party should not be able to evade judicial review, or to defeat a judgment, by 

temporarily altering questionable behavior.” Greater Yellowstone Coal. v. Tidwell, 572 

F.3d 1115, 1121 (10th Cir. 2009) (quotation and citations omitted). “[A] defendant 

claiming that its voluntary compliance moots a case bears the formidable burden of 

showing that it is absolutely clear the allegedly wrongful behavior could not reasonably 

be expected to recur.” Laidlaw, 528 U.S. at 190. 

 The district court concluded that CAMTS’ decision to enter into a consent 

agreement with Eagle, rather than CDPHE’s termination of its investigation, mooted this 

case. Because CDPHE’s actions were compelled by the acts of a non-party, the court 

reasoned, there was no “voluntary” act on CDPHE’s part. We agree. 

In concluding that the voluntary cessation doctrine was inapplicable, the court 

relied heavily upon our decision in Chihuahuan Grasslands Alliance. We too find that 

case instructive. There, several environmental groups challenged the sale of oil and gas 

mineral leases granted by the Bureau of Land Management (“BLM”). 545 F.3d at 887-

88. While the case was pending, the leases at issue were terminated for non-payment. Id.

at 889. BLM moved to dismiss the case as moot, and the environmental groups argued 

that the voluntary cessation doctrine precluded dismissal. Id. at 889-90. We held that a 

non-party—the delinquent lessee—caused the case to become moot: 

[W]e reject Appellants’ suggestion this case meets the mootness exception 
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of “voluntary cessation.” Nothing in the record presented to us indicates 

the BLM’s termination of the leases at issue constitutes a “voluntary 

cessation” of illegal conduct . . . . Instead, the terminations for nonpayment 

resulted from the actions of a third party, implicating the principle that 

vacatur is in order when mootness occurs through happenstance 

circumstances not attributable to the parties. 

Id. at 893. Analogously, the termination of CDPHE’s investigation “resulted from the 

actions of a third party”—CAMTS. 

 Eagle contends that this line of analysis is foreclosed by Adarand Constructors, 

Inc. v. Slater, 528 U.S. 216 (2000). In that case, plaintiff submitted the low bid for 

portion of a federal highway project. Id. at 219. The prime contractor awarded the 

subcontract to a different company, which had been certified by the Colorado Department 

of Transportation (“CDOT”) as a disadvantaged business enterprise (“DBE”). Id. Under 

federal regulations, state highway agencies could certify a company as a DBE if the 

company demonstrated social disadvantage, but the agencies were required to presume 

social disadvantage if a company was owned and controlled by members of a racial 

minority. Id. at 218. Importantly, the federal Department of Transportation (“DOT”) and 

third parties were empowered to challenge DBE designations made by state agencies. Id. 

On remand from the Supreme Court, the district court ruled that this scheme was 

unconstitutional. See Adarand Constructors, Inc. v. Pena, 965 F. Supp. 1556, 1584 (D. 

Colo. 1997). While an appeal of that decision was pending in this court, Colorado altered 

its DBE-certification procedure such that any company could obtain DBE status simply 

by stating that all owners suffered social disadvantage. See Adarand Constructors, Inc. v. 
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Slater, 169 F.3d 1292, 1296 (10th Cir. 1999). Adarand Constructors promptly requested 

and obtained DBE-certification from CDOT. Id. We dismissed the appeal as moot. See

id. at 1296-97, 1299. 

 The Supreme Court reversed our dismissal. It concluded that “[i]f th[e] case is 

moot, it is because the Federal Government has accepted CDOT’s certification of 

petitioner as a disadvantaged business enterprise, and has thereby ceased its offending 

conduct.” Adarand, 528 U.S. at 221-22. Accordingly, the Court ruled that the voluntary 

cessation doctrine should have applied. Id. at 222. In so holding, the Court remarked 

that “DOT accepts only ‘valid certifications’ from state agencies” and that “DOT ha[d] 

yet to approve—as it must—CDOT’s procedure for certifying disadvantaged business 

enterprises.” Id. at 222 (alteration omitted). Noting “the material differences (not to say 

incompatibility) between [CDOT’s] procedure and the requirements of the DOT 

regulations, it is not at all clear that CDOT’s certification is a ‘valid certification.’” Id. at 

223. 

 Based on this discussion, it is clear DOT possessed substantial discretion in 

determining whether to accept CDOT’s certification. Because of this discretion, DOT’s 

acceptance or rejection of a certification would be truly voluntary. In the case at bar, 

however, CDPHE has no such discretion.4

 Neither the statute nor the regulations at issue 

 4

 The statute permits CDPHE to issue a conditional license to an air ambulance 

service that has not obtained CAMTS accreditation, but requires such a service to be 

Continued . . . 
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allow CDPHE to reject a CAMTS’ accreditation decision in a particular case.5 See Colo. 

Rev. Stat. § 25-3.5-307(1)(a); 6 Colo. Code Regs. §§ 1015-3-13.2(5), -13.5, -13.13(1), -

13.13(3)(F). 

Because the Department’s actions were compelled by the choices of a non-party, 

they were not truly voluntary. By the same token, we would not say that a court clerk 

voluntarily enters a judgment when so ordered by a court. When a party’s actions are 

essentially ministerial and dictated by the actions of a non-party, the voluntary cessation 

doctrine does not apply. See Chihuahuan Grasslands Alliance, 545 F.3d at 893. 

Nevertheless, Eagle argues that CDPHE acted voluntarily in ceasing its 

investigation because the Department possesses the authority to conduct broad 

investigations of licensees on matters other than CAMTS accreditation. CDPHE does in 

fact have the authority Eagle attributes to it. See Colo. Rev. Stat. § 25-3.5-308 

(authorizing CDPHE to adopt rules for air ambulance licensees with respect to 

equipment, staffing, and medical oversight). However, the question we confront in this 

appeal is not whether CDPHE could have initiated a broad investigation of Eagle, but 

whether the actual investigation it undertook was limited to CAMTS accreditation. The 

record is clear that the Department’s investigation of Eagle was so limited. While the 

 

actively working towards accreditation and obtain accreditation within two years. Colo. 

Rev. Stat. § 25-3.5-307(1)(a). This provision is not at issue here. 

5

 Although the statute is written in permissive rather than mandatory language, 

there is no indication in the record that CDPHE has discretion to reject a CAMTS 

accreditation, nor has Eagle argued that the Department possesses such discretion. 
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CAMTS appeal was pending, CDPHE informed the court that if Eagle’s “accreditation is 

ultimately revoked by CAMTS, events will escalate quite rapidly; conversely, if the 

accreditation is not revoked, the investigation will be dropped.” True to its 

representation, CDPHE ceased its investigation promptly after learning of the CAMTSEagle consent agreement. Eagle has provided no basis to conclude that CDPHE’s 

investigation was directed at anything other than Eagle’s accreditation status. 

III

The voluntary cessation doctrine does not apply when the decisions that moot a 

case are made by a non-party, even if those decisions compel ministerial actions by a 

party. AFFIRMED. 

 Entered for the Court 

 Carlos F. Lucero 

 Circuit Judge