New Mexico Citizens for Clean Air and Water Pueblo of San Juan v. Espanola Mercantile Company, Inc., Doing Business as Espanola Transit Mix Co.

WEIS, Senior Circuit Judge.

In this appeal 1 , we conclude that one plaintiffs 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 attained by the prevailing plaintiff. Because the district court did not articulate such an apportionment, we will reverse and remand.

This is an action to enforce…