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 hi s official capacity; D. RANDAL KUYKEN DALL, Chief of Emergency Medical and Trauma Services Section, Colorado Department of Health and Environment, in hi s 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 Sc enic 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral es toppel. 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-2- Department of Public Health and Environm ent (“CDPHE” or the “Department”) began an investigation jeopardizing Eagle’s air am bulance license. The Department dropped that investigation when a non-party, th e Commission on Accreditation of Medical Transport Systems (“CAMTS”), agreed to con tinue 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 Medi cal and Trauma Services Act and its implementing regulations, air ambulance licen sees 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. Ea gle first obtained full CAMTS accreditation in 2001. On November 30, 2007, CA MTS sent a letter withdraw ing Eagle’s accreditation effective thirty days from receipt. Eagle initiated CAMTS’ appeal process and notified CDPHE of the pending withdrawal. The De partment 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 genera lly to both plaintiffappellants.-3- suspend an air ambulance license if a licensee fails to main tain 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. Befo re any hearing occurred, howev er, Eagle filed suit against CDPHE officials James Martin and D. Randal Kuyke ndall in their official capacities, claiming that Colorado’s air ambulance licen sing requirements are preempted by the Airline Deregulation Act of 1978, the Fe deral Aviation Act, and related federal regulations. On defendants’ motion, the di strict court stayed the case pursuant to Younger v. Harris , 401 U.S. 37 (1971), pending the De partment’s investigation. On July 16, 2008, Eagle and CAMTS en tered 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 administra tive action [would] be taken at this time.” Eagle requested the district court lift the previously imposed stay. Once the stay was lifted, defendants move d to dismiss the case as moot. Eagle argued that the voluntary cessation excepti on to mootness applied because CDPHE terminated the investigation of its own accord. It further cl aimed that defendants failed to show that the challenged conduct could not reasonably be expected to recur. The district court rejected Eagle’s pos ition. 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 appl y because CAMTS’ actions—not CDPHE’s—-4- mooted the case. Accordingly, the court granted defendants’ motio n to dismiss. Eagle timely appealed.
II A Mootness is a jurisdictional issue: “Withou t a live, concrete controversy, we lack jurisdiction to consider claims no matte r 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 presen t determination of the issues offered will have some effect in the real world.” Kennecott Utah Copp er Corp. v. Becker , 186 F.3d 1261, 1266 (10th Cir. 1999) (quotation and a lteration 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 th e general principles of the doctrine of mootness are not present in this ca se . . . . Rather, [Eagle] argue[d] that the ‘voluntary cessation’ exception to this doctrine is applicab le.” 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 Colo rado’s air ambulance licensing-5- requirements, including the CAMTS accreditation requirement, thus jeopardizing [Eagle’s] rights to carry ou t air transport in Colorado to the full scope of [its] federal authorization. The [p]laintiffs in the current case have not changed their behavior; Ea gle is still being “reviewed” by CAMTS and faces a CAMTS reaccredita tion requirement also in July, 2009. Although this snippet of text appears somewhat related to general mootness principles, it is squarely aimed at addre ssing exceptions to mootness when read in context. The above-quoted passage immediat ely 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 wro ngful behavior.” Both cases concerned the “capable of repetition, yet evading re view” 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 cas e have not changed their behavior” is a clear reference to this exception. Overall, Eagle’s response focused primar ily on its argument that defendants bore a “formidable burden” under the voluntary cessation doctrine to make “absolutely clear that the allegedly wrongful be havior could not reas onably be expected to recur,” quoting Friends of the Earth, Inc. v. Laid law Environmental Services (TOC), Inc. , 528 U.S. 167, 190 (2000). Eagle argued repeatedly that defe ndants failed to satisfy this burden. Many of the statements cited by Eagl e in support of its preservation argument refer directly to-6- Laidlaw ’s “reasonably be expected to recur” language. Further, the passage upon which Eagle re lies is sandwiched between discussions of the Laidlaw standard for voluntary cessation. Immediately before Eagle discusses
Lane and Disability Law Center , it argues that defendants’ st atements fail to show that “the allegedly wrongful behavior cannot reasonably be e xpected to recur.” Immediately after the quoted passage, it states, “The Tent h 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 th e likelihood that the harm alleged will recur rather than the imminence of any pres ent threat. For exampl e, Eagle argued that defendants “have the po wer to reinstitute the jeopardizati on of Eagle’s Colorado license.” Likewise, Eagle concluded its mootness disc ussion 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 re garding defendants’ continued enforcement of the challenged ac creditation requirement are most naturally read as relevant to the like lihood that the allegedly wron gful behavior could recur—a voluntary cessation argument. Eagle did not identify the standards for ge neral mootness in its briefing before the-7- district court, nor did it discuss any ca ses concerning whether a non-immediate but potential governmental action is sufficient to avoid dismissal on mootness grounds. 2 Having reviewed Eagle’s response to defendant s’ motion to dismiss, we agree with the district court: Eagle did not argue that its ca se 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 re garding 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 cate gory as an argument pr esented 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 Co lorado’s air ambulance licensing regi me 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 author ity, 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 (10t h Cir. 2003) (“We . . . will not cons ider 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 ch allenged action. This excep tion traces to the principle that a party should not be ab le 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 form idable 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 CA MTS’ decision to enter into a consent agreement with Eagle, rather than CDPHE’s te rmination of its investigation, mooted this case. Because CDPHE’s actions were compe lled 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 Gra sslands Alliance . We too find that case instructive. There, several environmenta l 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 th is case meets the mootness exception-9- 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 . . . . In stead, the terminati ons for nonpayment resulted from the actions of a third party, implicating the principle that vacatur is in order when moot ness 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 ha d been certified by the Colorado Department of Transportation (“CDOT”) as a disadvant aged 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 owne d and controlled by members of a racial minority. Id. at 218. Importantly, the federal De partment of Transportation (“DOT”) and third parties were empowered to challenge DB E designations made by state agencies. Id. On remand from the Supreme Court, the dist rict 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 decisi on was pending in this court, Colorado altered its DBE-certification procedure such that a ny company could obtain DBE status simply by stating that all owners suffe red social disadvantage. See Adarand Constructors, Inc. v.-10- 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 enterp rise, 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 hold ing, 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 procedur e for certifying disadvantaged business enterprises.” Id. at 222 (alteration omitted). Noting “the material differences (not to say incompatibility) between [CDO T’s] procedure and the requirements of the DOT regulations, it is not at all clear that CDOT’s ce rtification is a ‘valid certification.’” Id. at 223. Based on this discussion, it is clea r DOT possessed substantial discretion in determining whether to accept CDOT’s certifica tion. Because of this discretion, DOT’s acceptance or rejection of a cer tification would be tr uly 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 requi res such a service to be Continued . . .-11- allow CDPHE to reject a CAMTS’ accred itation 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 co mpelled by the choices of a non-party, they were not truly voluntary. By the same token, we would not sa y that a court clerk voluntarily enters a judgment when so ordered by a court. When a party’s actions are essentially ministerial and di ctated by the actions of a non-party, the voluntary cessation doctrine does not apply. See Chihuahuan Gra sslands Alliance , 545 F.3d at 893. Nevertheless, Eagle argues that CDPH E acted voluntarily in ceasing its investigation because the Department po ssesses the authority to conduct broad investigations of licensees on matters other than CAMTS accreditati on. CDPHE does in fact have the authority Eagl e attributes to it. See Colo. Rev. Stat. § 25-3.5-308 (authorizing CDPHE to adopt rules for ai r 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 inves tigation of Eagle was so limited. While the actively working towards accreditation and obta in 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 permi ssive 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 th e Department possesses such discretion.-12- CAMTS appeal was pending, CDPHE informed th e court that if Eagle’s “accreditation is ultimately revoked by CAMTS, events will es calate quite rapidly; conversely, if the accreditation is not revoked, the investig ation will be dropped.” True to its representation, CDPHE ceased its investigation promptly after learning of the CAMTSEagle consent agreement. Eagle has provid ed no basis to conclude that CDPHE’s investigation was directed at anything other than Eagl e’s accreditation status.
III The voluntary cessation doctrine does not ap ply when the decisions that moot a case are made by a non-party, even if thos e decisions compel ministerial actions by a party. AFFIRMED

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Entered for the Court

Carlos F. Lucero Circuit Judge