Florida Panthers et al v. Collier County, Florida et al
Filing
27
OPINION AND ORDER granting 22 Defendants' Motion to Dismiss. The First Amended Complaint is dismissed without prejudice. Plaintiffs may file a second amended complaint within 14 days of this Opinion and Order. See Opinion and Order for details. Signed by Judge John E. Steele on 6/17/2014. (MAB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FLORIDA
PANTHERS,
(Puma
concolor
coryi)
an
endangered
species,
REDCOCKADED
WOODPECKERS,
(Picoides
boralis)
an
endangered species, FLORIDA
WILDLIFE FEDERATION, a notfor-profit
Florida
corporation,
and
COLLIER
COUNTY
AUDUBON
SOCIETY,
INC.,
a
not-for-profit
Florida corporation,
Plaintiffs,
v.
Case No: 2:13-cv-612-FtM-29DNF
COLLIER COUNTY, FLORIDA, a
political subdivision of the
State of Florida, GEORGIA A.
HILLER,
in
her
official
capacity as a Collier County
Commissioner, TOM HENNING,
in his official capacity as
a
Collier
County
Commissioner, FRED W. COYLE,
in his official capacity as
a
Collier
County
Commissioner, and TIM NANCE,
in his official capacity as
Collier County Commissioner,
Defendants.
OPINION AND ORDER
This matter comes before the Court on defendants' Motion to
Dismiss First Amended Complaint (Doc. #22) filed on December 13,
2013.
Plaintiffs filed a Response in Opposition (Doc. #23) on
December 26, 2013.
For the reasons set forth below, the motion
is granted.
I.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted).
To survive dismissal, the factual allegations
must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”
Id. at 555.
See also Edwards v.
Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
“more
than
an
accusation.”
unadorned,
Ashcroft
v.
This requires
the-defendant-unlawfully-harmed-me
Iqbal,
556
U.S.
662,
678
(2009)
(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,”
v.
Berzain,
omitted).
654
F.3d
1148,
1153
(11th
Cir.
2011)
Mamani
(citations
“Threadbare recitals of the elements of a cause of
- 2 -
action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
consistent
with
a
“Factual allegations that are merely
defendant’s
facially plausible.”
liability
fall
short
of
being
Chaparro v. Carnival Corp., 693 F.3d 1333,
1337 (11th Cir. 2012) (internal quotation marks and citations
omitted).
Thus, the Court engages in a two-step approach: “When
there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give rise
to an entitlement to relief.”
Iqbal, 556 U.S. at 679.
II.
On August 21, 2013, the Florida panthers, the red-cockaded
woodpeckers,
the
Florida
Wildlife
Federation
(FWF),
and
the
Collier County Audubon Society (CCAS) (collectively, plaintiffs)
initiated this action against Collier County, Florida and Collier
County Commissioners Georgia A. Hiller, Tom Henning, Fred W. Coyle,
and
Tim
Nance
(collectively,
defendants)
pursuant
to
the
Endangered Species Act of 1973 (ESA), 16 U.S.C. § 1531-1544.
Plaintiffs’ First Amended Complaint, filed on December 12, 2013,
seeks declaratory and injunctive relief to prevent defendants from
implementing, enacting, or authorizing land clearing, land uses,
and road extensions into occupied and essential habitats of Florida
panthers and red-cockaded woodpeckers in North Belle Meade without
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an ESA Section 10 Habitat Conservation Plan (HCP) and incidental
take permit (ITP) from the U.S. Fish and Wildlife Service (FWS).
Before
summarizing
the
factual
allegations
in
the
First
Amended Complaint, the Court will provide an overview of the ESA.
A.
The Endangered Species Act of 1973
Congress enacted the Endangered Species Act of 1973, 16 U.S.C.
§
1531-1544,
“to
halt
and
reverse
extinction, whatever the cost.”
U.S. 153, 184 (1978).
the
trend
toward
species
Tenn. Valley Auth. v. Hill, 437
“In accordance with this policy, the ESA
provides for the listing of species as threatened or endangered
and the designation of their critical habitat.”
Defenders of
Wildlife v. United States Dep’t of the Navy, 733 F.3d 1106, 1111
(11th Cir. 2013) (citing 16 U.S.C. § 1533).
Section 9 of the ESA
protects the threatened and endangered species listed pursuant to
§ 1533 by making it unlawful for any person subject to the
jurisdiction of the United States to “take” any such species.
16
U.S.C. § 1538(a)(1)(B).
Defined broadly, “take” means “to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to attempt to
engage in any such conduct.”
16 U.S.C. § 1532(19); see Babbitt
v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 704
(1995)
(“Congress
intended
‘take’
to
apply
indirect as well as purposeful actions.”).
- 4 -
broadly
to
cover
The term “harass” is
further defined by the regulations as an “intentional or negligent
act or omission which creates the likelihood of injury to wildlife
by annoying it to such an extent as to significantly disrupt normal
behavioral
breeding,
patterns
feeding,
which
or
include,
sheltering.”
but
50
are
not
C.F.R.
limited
to,
17.3.
The
§
regulations define “harm” as “an act which actually kills or
injures
wildlife.
Such
act
may
include
significant
habitat
modification or degradation where it actually kills or injures
wildlife by significantly impairing essential behavioral patterns,
including breeding, feeding, or sheltering.”
50 C.F.R. § 17.3.
Congress provided an incidental take permit exception to §
1538(a)(1)(B) for takings that are incidental to, and not the
purpose of, the execution of an otherwise lawful activity.
16
U.S.C.
an
§
incidental
1539(a)(1)(B).
take
permit,
As
the
a
prerequisite
applicant
must
to
receiving
submit
a
habitat
conservation plan that specifies:
(i) the impact which will likely result from such taking;
(ii) what steps the applicant will take to minimize and
mitigate such impacts, and the funding that will be
available to implement such steps;
(iii) what alternative actions to such taking the
applicant
considered
and
the
reasons
why
such
alternatives are not being utilized; and
(iv) such other measures that the Secretary may require
as being necessary or appropriate for purposes of the
plan.
- 5 -
16 U.S.C. § 1539(2)(A)(i)-(iv).
B.
Endangered Species under the ESA
With this overview in mind, the Court will now turn to the
allegations in the First Amended Complaint.
(1)
The Florida Panther
The
Florida
panther
has
been
endangered species since 1967.
Conservation
Commission
(FWCC)
listed
by
the
FWS
as
an
The Florida Fish and Wildlife
estimates
that
the
current
population of Florida panther adults is approximately 100-160,
making the Florida panthers one of the most endangered species in
the United States.
The current breeding population of Florida
panthers is located on approximately 2.27 million acres in Collier,
Lee, Hendry, Miami-Dade, and Monroe counties.
The North Belle
Meade (NBM) area in Collier County has been designated as primary
zone Florida panther habitat and the presence of collared and
uncollared Florida panthers in NBM has been well documented for
decades.
The FWS’s Recovery Plan for the Florida panther requires the
protection
of
all
existing
occupied
breeding
panther
lands,
expansion of the panther breeding population to 250 adults, and
the reintroduction of at least two additional breeding populations
of 250 adult Florida panthers within the Florida panthers’ historic
range of outside south-central Florida.
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In order to protect the
current
population
of
Florida
panthers,
habitat
conservation
measures must be used to protect occupied primary zone Florida
panther
habitat,
such
as
NBM,
from
being
cleared,
mined,
or
fragmented by roadways.
(2)
The Red-cockaded Woodpecker
The red-cockaded woodpecker has been listed by the FWS as an
endangered species under the ESA since 1970.
Both the FWS and the
FWCC have identified colonies of red-cockaded woodpeckers in west
and central NBM, and the FWCC has identified the lands in NBM to
be strategic habitat for the red-cockaded woodpecker.
The only
documented occurrence of red-cockaded woodpeckers on private land
in Collier County is in NBM.
The
primary
threats
to
the
red-cockaded
woodpecker
are
habitat loss, fragmentation by land clearing and roadways, habitat
degradation,
and
isolation.
Highways
fragment
red-cockaded
woodpecker populations in three ways: loss of large carnivores,
habitat dissection, and the isolation of red-cockaded woodpeckers.
When highways fragment large carnivore populations, red-cockaded
woodpeckers
carnivores
can
such
suffer
as
increased
bobcats,
depredation
skunks,
and
from
weasels.
smaller
Habitat
dissection and isolation often result in patches of habitat too
small to function as red-cockaded woodpecker territory.
- 7 -
The
FWS
developed
a
recovery
plan
for
red-cockaded
woodpeckers, which requires: (1) the location and preservation of
viable pine forested habitats; (2) restoration of degraded pine
forests; and (3) maintaining or creating pine forested wildlife
corridors which link or have the opportunity to link potential
breeding groups of red-cockaded woodpeckers.
Between 2007 and 2009, Collier County’s “Habitat Conservation
Plan Committee” drafted an ESA Section 10 HCP for the protection
and conservation of red-cockaded woodpeckers in NBM.
The drafted
plan clearly identified the red-cockaded woodpecker cavity trees
and foraging areas in NBM, and contained maps of FWCC telemetry
locations of collared Florida panthers up to 2009.
The Collier
County Board of Commissioners, however, voted against the approval
of the Habitat Conservation Plan in 2009.
C.
The Collier County Comprehensive Land Use Plan
In 1989, Collier County enacted its first comprehensive land
use plan, the Collier County Comprehensive Land Use Plan (the
Collier Plan).
During the adoption process of the Collier Plan,
an advisory group of wildlife experts designated areas in Collier
County that needed to be given additional protections in the
Collier Plan as Natural Resource Protection Areas (NPRAs).
The
Collier Plan provided that NPRAs would be designated on the Future
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Land Use Map of the Collier Plan by August 1994 in order to protect
endangered species and their habitats within Collier County.
On November 14, 1997, Collier County amended the Collier Plan
pursuant to the County’s 1996 Evaluation and Appraisal Report
(EAR).
Among the amendments was the deletion of the August 1994
deadline for designating NPRAs on the Collier Plan’s Future Land
Use Map.
On December 24, 1997, the Florida Department of Community
Affairs (FDCA) issued a Notice of Intent to find Collier County’s
EAR-based amendments not “in compliance,” as defined by Fla. Stat.
§
163.3184(1)(b).
The
FDCA’s
petition
was
forwarded
to
the
Florida Division of Administrative Hearings and the FWF and CCAS
intervened in the action.
After a five day evidentiary hearing,
the Administrative Law Judge (ALJ) issued a Recommended Order
finding that Collier County’s EAR-based amendments were not in
compliance with Chapter 163, Part II, Florida Statutes.
The
Recommended
Order
was
approved
by
the
Florida
Administration Commission on June 22, 1999, and a Final Order was
entered directing Collier County to take the following steps to
bring the Collier Plan into compliance with Chapter 163: (1)
rescind the 1997 EAR-based amendments that were not in compliance
with
Chapter
163;
(2)
adopt
certain
specific
“remedial”
amendments; (3) initiate a three year assessment of the area of
Collier
County
designated
on
the
- 9 -
Future
Land
Use
Map
as
Agricultural/Rural; (4) adopt interim amendments to remain in
force during the three year assessment; and (5) no later than June
22, 2002, adopt plan amendments needed to implement the findings
and results of the three year assessment.
Collier County was also
required to direct incompatible land uses away from wetlands and
upland habitats of listed species by means of creative planning
techniques.
Collier
County
conducted
the
three
year
assessment
as
directed and elected to divide the Agricultural/Rural designated
areas into two sub districts-the Rural Fringe and the Eastern
Lands.
The Eastern Lands, consisting of 196,000 acres surrounding
Immokalee, was designated the Rural Lands Stewardship Area.
The
Rural Fringe, consisting of 93,000 acres, including the 15,552
acre NBM area, was designated the Rural Fringe Mixed Use District.
In 2002, Collier County enacted Collier County Ordinance No.
02-32 to amend the Collier Plan.
The amendments included the 2002
Coastal and Conservation Management Element (CCME) Objective 7.1.
The CCME mandated that the County “direct incompatible land uses
away from listed species and their habitats” based upon the listing
process
of
state
and
federal
agencies.
Pursuant
to
this
directive, the following land use designations were set forth in
the
Future
Land
Use
Element
of
the
Collier
Plan:
(1)
the
“Conservation” land use category; (2) the “Big Cypress Area of
- 10 -
Critical State Concern Overlay” land use category; (3) the “NRPA”
land use category; (4) the “Sending Lands” land use category with
transfer of development rights to “Receiving Lands”; and (5) the
“Habitat Stewardship Areas” land use category applicable to the
Rural Lands Stewardship Area of the Collier Plan.
The Rural Fringe Amendments defined “Sending Lands” as those
“[t]hat have the highest degree of environmental value” and “are
the
principal
target
for
preservation
and
conservation.”
Residential use of “Sending Lands” under the Collier Plan is
limited to one dwelling unit per parcel which existed as of June
22, 1999, or one dwelling unit per 40 acres.
Non-residential uses
other than agriculture are limited for the purpose of protecting
native habitat, wildlife, wildlife habitat, and wetlands.
is prohibited on lands designated as “Sending Lands.”
Mining
The Rural
Fringe Amendments designated the HHH Ranch property as “Sending
Lands,” which limited residential density onsite, provided for the
transfer of development rights to designated “Receiving Lands,”
and prohibited mining on the property.
The owners of the HHH Ranch, Dr. Francis Hussey and Mary Pat
Hussey, challenged the designation of their property as “Sending
Lands”
in
an
administrative
hearing.
After
an
eight
day
evidentiary hearing, the presiding ALJ issued a Recommended Order
finding the Rural Fringe Amendments to be in compliance with
- 11 -
Chapter 163, Part II, Florida Statutes, because the designation of
the Hussey’s land as “Sending Lands” was based upon the best
available
evidence.
The
Husseys
Recommended Order with the FDCA.
filed
exceptions
to
the
The FDCA entered a Final Order
upholding the designation of the Hussey’s property as “Sending
Lands.”
The Husseys appealed the FDCA’s Final Order and Florida’s
First District Court of Appeals affirmed the decision.
The Husseys filed another lawsuit challenging the designation
of the HHH Ranch property pursuant to the Bert J. Harris, Jr.,
Private Property Rights Protection Act, Fla. Stat, § 70.001, in
the Circuit Court of the Twentieth Judicial Circuit in and for
Collier
County,
Florida.
On
February
12,
2013,
defendants
authorized a Settlement Agreement with the Husseys to: (a) amend
the Collier Plan designation of 578 acres of occupied Florida
panther and red-cockaded woodpecker habitat on the HHH Ranch from
“Sending Lands” to “Receiving Lands”; (b) extend Wilson Boulevard
into occupied Florida panther and red-cockaded woodpecker habitat;
and (c) reduce land clearing restriction on 578 acres of the HHH
Ranch.
Agreement,
A
“Joint
Pursuant
Motion
to
for
Florida
Court
Approval
Statutes
of
Settlement
70.001(4)(d)(2),”
was
filed with the Circuit Court on April 26, 2013, and the FWF and
CCAS, as intervenors in the action, filed a response to the motion.
On September 13, 2013, Circuit Judge Cynthia A. Pivacek, in denying
- 12 -
the Joint Motion for Court Approval of Settlement Agreement,
concluded
that
the
Settlement
Agreement
would
contravene
the
application of laws and regulations, including the ESA, and would
not
protect
the
regulations.
public
interests
(Doc. #17-3, p. 17.)
served
by
such
laws
and
Both the County and the
Husseys appealed the Order Denying Approval of Joint Settlement
Agreement to Florida’s Second Circuit Court of Appeals, which
appeal remains pending.
Plaintiffs allege that defendants have violated the ESA by
(1) authorizing and allowing the HHH Ranch to perform agricultural
land clearing on 604 acres of occupied Florida panther and redcockaded woodpecker habitat, and (2) authorizing the Settlement
Agreement
with
the
Husseys
to
(a)
amend
the
Collier
Plan
designation of 578 acres of occupied Florida panther and redcockaded woodpecker habitat on the HHH Ranch from “Sending Lands”
to “Receiving Lands”; (b) extend Wilson Boulevard into occupied
Florida
panther
and
red-cockaded
woodpecker
habitat;
and
(c)
reduce land clearing restriction on 578 acres of the HHH Ranch.
Plaintiffs
assert
that
defendants’
actions,
individually
and
cumulatively, violate the ESA because they are causally related to
the “take” of Florida panthers and red-cockaded woodpeckers, for
which defendants did not obtain a Section 10 HCP or an ITP from
the FWS.
- 13 -
III.
Defendants move to dismiss the claim relating to the proposed
Settlement Agreement between Collier County and the Husseys for
lack
of
subject
matter
jurisdiction
because
it
presents
a
hypothetical, rather than “actual,” legal dispute. 1
“‘Federal
courts
that
are
courts
power
of
limited
authorized
by
jurisdiction,’
possessing
‘only
Constitution
and
statute.’”
Gunn v. Minton, 133 S. Ct. 1059, 1064 (2013) (quoting
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994)).
“Article III, § 2, of the Constitution limits the
jurisdiction of federal courts to ‘Cases’ and ‘Controversies,’
which restricts the authority of federal courts to resolving the
legal rights of litigants in actual controversies.”
Genesis
Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1528 (2013) (citation
and internal quotation marks omitted).
“This case-or-controversy
doctrine fundamentally limits the power of federal courts in our
1Defendants
also assert that any claims relating to the Wilson
Boulevard Extension are not ripe for judicial review. Plaintiffs,
however, have presented evidence showing that the Collier County
is currently taking steps to implement a provision of the Collier
Plan that provides for the extension of Wilson Boulevard.
While the evidence may support plaintiffs’ position, the only
allegations in the First Amended Complaint pertaining to the Wilson
Boulevard Extension are directly related to the terms of the
proposed Settlement Agreement. Because plaintiffs have failed to
allege that the Collier Plan provides for the extension of Wilson
Boulevard or that defendants have taken any action in furtherance
of the extension that is separate or distinct from the Settlement
Agreement, the Court declines to address this issue at this time.
- 14 -
system of government, and helps to identify those disputes which
are
appropriately
resolved
through
the
judicial
process.”
National Advertising Co. v. City of Miami, 402 F.3d 1335, 1339(11th
Cir. 2005) (quoting Georgia State Conference of NAACP Branches v.
Cox, 183 F.3d 1259, 1262 (11th Cir. 1999)) (citation and internal
quotation marks omitted).
“Ripeness
reflects
constitutional
considerations
that
implicate Article III limitations on judicial power, as well as
prudential reasons for refusing to exercise jurisdiction.”
Stolt-
Nielsen S.A. v. AnimalFeeds International Corp., 559 U.S. 662, 670
n.2
(2010)
(citation
and
internal
quotation
marks
omitted);
National Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S.
803, 808 (2003).
To determine whether a claim is ripe for judicial
review, the court considers both “the fitness of the issues for
judicial
decision”
consideration.”
and
“the
hardship
of
withholding
court
Stolt-Nielsen S.A., 559 U.S. at 670 n.2; National
Park Hospitality Ass’n, 538 U.S. at 808.
The court considers:
“(1) whether delayed review would cause hardship to the plaintiffs;
(2) whether judicial intervention would inappropriately interfere
with further administrative action; and (3) whether the courts
would benefit from further factual development of the issues
presented.”
Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S.
726, 733 (1998).
Strict application of the ripeness doctrine
- 15 -
prevents
federal
opinions
and
courts
wasting
from
rendering
judicial
potential or abstract disputes.
impermissible
resources
through
advisory
review
of
National Advertising Co., 402
F.3d at 1339.
In this matter, plaintiffs request an order finding that the
conduct authorized by the Settlement Agreement violates Section 9
of the ESA.
advisory
Such an order, however, would be an impermissible
opinion
because
the
Settlement
Agreement
implemented without approval of the Circuit Court.
§ 70.001(4)(d)(2).
cannot
be
See Fla. Stat.
If Florida’s Second Circuit Court of Appeals
affirms the Order Denying Approval of Joint Settlement Agreement,
any action by this Court would be for nought.
See Pittman v.
Cole, 267 F.3d 1269, 1278 (11th Cir. 2001) (claims are less likely
to
be
considered
fit
for
judicial
review
“speculation about contingent future events”).
when
they
require
“Put another way,
‘[h]aste makes waste, and the premature adjudication of legal
questions compels courts to resolve matters, even constitutional
matters, that may with time be satisfactorily resolved at the local
level, and that may turn out differently in different settings.’”
Temple B’Nai Zion, Inc. v. City of Sunny Isles Beach, Fla., 727
F.3d 1349, 1356 (11th Cir. 2013) (quoting Miles Christi Religious
Order v. Twp. of Northville, 629 F.3d 533, 537 (6th Cir. 2010)).
Because the claims relating to the Settlement Agreement hinge on
- 16 -
the pending appeal, they are not fit for judicial review and will
be dismissed.
Dismissal, however, will be without prejudice so
that plaintiffs may reassert their claims if they become ripe at
some later date.
IV.
Plaintiffs allege that defendants have authorized and allowed
the HHH Ranch to perform agricultural land clearing on 604 acres
of occupied Florida panther and red-cockaded habitat in violation
of the ESA.
Defendants assert that this claim should be dismissed
because Collier County does not have the authority to regulate
agricultural land clearing pursuant to Florida’s Right to Farm
Act, Fla. Stat. § 823.14.
In response, plaintiffs state that:
The County’s current comprehensive land use plan and
land development code provisions authorize land clearing
of occupied habitat of ESA listed species merely upon
the land owner providing notice of the land clearing to
the County.
The County ordinances do not restrict
agricultural land clearing, nor do the County ordinances
require land clearing only take place after the property
owner obtained an ESA Section 10 HCP and ITP from the
FWS. This ongoing County authorization of land clearing
of occupied endangered species habitat is countrywide
and
is
not
limited
[to]
agricultural
lands.
Additionally, [plaintiffs’] land clearing claim against
defendants is not limited to land clearing on the HHH
Ranch in North Belle Meade.
(Doc. #23, pp. 8-9.)
After reviewing the First Amended Complaint, the Court is
unable to find any factual or conclusory allegations supporting
plaintiffs’
assertion.
Because
the
- 17 -
response
indicates
that
plaintiffs intend for the land clearing claim to cover more than
the authorization and allowance of agricultural land clearing on
the HHH Ranch, the Court will dismiss but grant plaintiffs leave
to
amend
the
claim
to
include
other
land
clearing
activity.
Accordingly, plaintiffs’ land clearing claim is dismissed without
prejudice.
Accordingly, it is hereby
ORDERED:
1.
Defendants' Motion to Dismiss (Doc. #22) is GRANTED.
The First Amended Complaint is DISMISSED WITHOUT PREJUDICE.
2.
Plaintiffs may file a second amended complaint WITHIN
FOURTEEN (14) DAYS of this Opinion and Order.
DONE and ORDERED at Fort Myers, Florida, this
of June, 2014.
Copies:
Counsel of Record
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17th
day
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