FRIENDS OF MERRYMEETING BAY et al v. TOPSHAM HYDRO PARTNERS LIMITED PARTNERSHIP
Filing
112
ORDER ON RENEWED MOTION TO DISMISS granting 108 Renewed Motion to Dismiss. Motions in Limine 71 , 72 , 73 , 74 , 75 and Motions for Summary Judgment 76 and 78 are dismissed as moot By JUDGE GEORGE Z. SINGAL. (lrc)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
FRIENDS OF MERRYMEETING BAY,
et al.,
Plaintiffs,
v.
TOPSHAM HYDRO PARTNERS
LIMITED PARTNERSHIP,
Defendant.
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) Docket no. 2:11-cv-37-GZS
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ORDER ON RENEWED MOTION TO DISMISS
Before the Court is Defendant Topsham Hydro Partners Limited Partnership’s Renewed
Motion To Dismiss (ECF No. 108) (“Renewed Motion To Dismiss”).1 As explained herein, the
Court GRANTS Defendant’s Renewed Motion To Dismiss (ECF No. 108) on mootness grounds.
I.
LEGAL STANDARD
The Constitution confines the federal courts' jurisdiction to actual cases or controversies.
U.S. Const. art. III, § 2, cl. 1. An actual case or controversy must exist “at each and every stage
of the litigation.” Connectu LLC v. Zuckerberg, 522 F.3d 82, 88 (1st Cir. 2008). Litigation
becomes moot when an actual case or controversy ceases to exist because “the issues presented
are no longer live or . . . the parties lack a legally cognizable interest in the outcome.” Overseas
Military Sales Corp. v. Giralt-Armada, 503 F.3d 12, 17 (1st Cir. 2007) (internal quotation
omitted). “If an event occurs while a case is pending that heals the injury and only prospective
relief has been sought, the case must be dismissed.” Southern Utah Wilderness Alliance v.
Smith, 110 F.3d 724, 727 (10th Cir. 1997); see also Cruz v. Farquharson, 252 F.3d 530, 533 (1st
1
The Court acknowledges receipt of Plaintiffs’ Notice Of Recent Authority Relevant To Defendants’ Renewed
Motion To Dismiss (ECF No. 111).
Cir. 2001) (stating that once a case becomes moot, dismissal is “compulsory”). However, a party
asserting that a case should be dismissed as moot bears a heavy burden in showing that “it is
absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 66 (1987) (quoting
United States v. Phosphate Export Ass., Inc., 393 U.S. 199, 203 (1968)) (alteration in original).
Closely related to Article III mootness is “prudential mootness” arising from a court’s
ability to exercise discretion not to grant relief. Even where a case may not be moot in the strict
Article III sense, a case may become “so attenuated that considerations of prudence and comity
for coordinate branches of government counsel the court to stay its hand, and to withhold relief it
has the power to grant.” Chamber of Commerce of U.S. of Am. v. U.S. Dept. of Energy, 627
F.2d 289, 291 (D.C. Cir. 1980). As with Article III mootness, the inquiry under prudential
mootness becomes whether “circumstances [have] changed since the beginning of the litigation
that forestall any occasion for meaningful relief.” Southern Utah Wilderness Alliance, 110 F.3d
at 727.
The First Circuit has observed that it is appropriate to consider mootness challenges as
challenges to a court's subject-matter jurisdiction, and that “[t]he proper vehicle for challenging a
court's subject-matter jurisdiction is Federal Rule of Civil Procedure 12(b)(1).” Valentin v.
Hosp. Bella Vista, 254 F.3d 358, 362-63 (1st Cir. 2001); see United Seniors Ass'n v. Philip
Morris USA, 500 F.3d 19, 23 (1st Cir. 2007). While there are different types of attacks on
subject matter jurisdiction under Rule 12(b)(1), because the parties here do not challenge the
authenticity nor the admissibility of the National Marine Fisheries Service Endangered Species
Act Biological Opinion (“Biological Opinion” or “BO”) and the accompanying Incidental Take
Statement (“ITS”) (ECF No. 108-2), the basis for and the documents considered by the Court
2
under the mootness challenge, the procedure for the Court’s analysis would not differ materially
under either type of attack. See, e.g., Williamson v. Tucker, 645 F.2d 404, 412-15 (5th Cir.
1981) (cited approvingly in Valentin, 254 F.3d at 364 and providing the different levels of
review in which a court may engage when evaluating a motion to dismiss for lack of subject
matter jurisdiction under Rule 12(b)(1)).
II.
THE ENDANGERED SPECIES ACT
Congress has declared that the purpose of the Endangered Species Act (“ESA”) is “to
provide a means whereby the ecosystems upon which endangered species and threatened species
depend may be conserved” and “to provide a program for the conservation of such endangered
species and threatened species.” 16 U.S.C. § 1531(b). Accordingly, when it was passed, the
ESA represented “the most comprehensive legislation for the preservation of endangered species
ever enacted by any nation.” Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180 (1978). Under
the ESA, “[v]irtually all dealings with endangered species, including taking, possession,
transportation, and sale, were prohibited, except in extremely narrow circumstances.”
Id.
(internal citations omitted). To further the protection afforded by the ESA, the statute includes a
citizen suit provision, allowing interested persons to bring suit to force compliance with the ESA.
Id. at 180-81; see also 16 U.S.C. § 1540(g).
Section 9 of the ESA makes it unlawful for any person to “take” any threatened or
endangered species of fish or wildlife within the United States, unless an incidental take
statement is obtained pursuant to the consultation process in Section 7 of the ESA.2 16 U.S.C.
§§ 1536, 1538. If during the consultation process, the agency determines that an action is not
likely to jeopardize the species, but is reasonably certain to result in the incidental take of a listed
2
Although not material to this case, the ESA also provides for incidental take permits under section 10 of the ESA.
See 16 U.S.C. § 1539.
3
species, the agency provides an incidental take statement along with a biological opinion. See 16
U.S.C. § 1536(a)(2). An incidental take statement must specify the impact of the incidental
taking on the species and “those reasonable and prudent measures that [the agency] considers
necessary or appropriate to minimize such impact.”
Id. § 1536(b)(4)(i)-(iv).
Further, an
incidental take statement must “set[] forth the terms and conditions (including, but not limited to,
reporting requirements) that must be complied with by the Federal agency or applicant (if any),
or both, to implement the [reasonable and prudent measures].” Id. § 1536(b)(4)(iv). Finally,
Section 7(o)(2) of the ESA states that “any taking that is in compliance with the terms and
conditions specified in a written [incidental take] statement . . . shall not be considered to be a
prohibited taking of the species concerned.” Id. § 1536(o)(2). Accordingly, an incidental take
statement constitutes authorization for a person to “take” an endangered species so long as the
“take” is done in accordance with the “terms and conditions” specified by the agency.
III.
BACKGROUND
In 2000, the National Marine Fisheries Service (“NMFS”) and the United States Fish and
Wildlife Service (“USFWS”) (collectively, the “Services”) issued a rule listing the Gulf of Maine
Distinct Population Segment (“GOM DPS”) of Atlantic salmon endangered under the ESA.
(Complaint (ECF No. 1) ¶ 16.) On June 19, 2009, the Services issued a final rule including the
Atlantic salmon populations of the Kennebec, Androscoggin and Penobscot Rivers in the GOM
DPS, thereby formally designating those populations of Atlantic salmon as endangered under the
ESA. (Id. ¶ 17.) In their Complaint, Plaintiffs Friends of Merrymeeting Bay and Environment
Maine allege that the Kennebec and Androscoggin Rivers historically had the largest Atlantic
salmon runs in the United States, estimated at more than 100,000 adults each year. (Id. ¶ 13.)
4
Now, the numbers of adult Atlantic salmon returning to these rivers is perilously low. (Id.) For
example, in 2010, only ten adult Atlantic salmon returned to the Androscoggin River. (Id.)
Defendant Topsham Hydro Partners Limited Partnership (“Topsham Hydro”) is an owner
of, operates and holds the Federal Energy Regulatory Commission (“FERC”) license for the
Pejepscot hydroelectric dam (the “Pejepscot Project”) located on the Androscoggin River. (Id. ¶
7.) In their Complaint, Plaintiffs allege that the Pejepscot Project kills, harms and harasses
endangered Atlantic salmon in numerous ways: the dam kills and injures Atlantic salmon when
the fish pass through the turbines; the dam impedes upstream and downstream fish passage,
which in turn prevents those Atlantic salmon from accessing spawning and rearing habitat; and,
the dam alters the natural habitat of Atlantic salmon to the point that the essential behavior
patterns of the fish are impaired, among other negative consequences. (Id. ¶ 1.) Plaintiffs claim
that Topsham Hydro is violating the ESA by killing, harming and harassing Atlantic salmon
through the operation of the Pejepscot Project. (Id. ¶¶ 1, 24-25.)
Plaintiffs filed their Complaint (ECF No. 1) on January 31, 2011 against Topsham Hydro
asserting a cause of action under the Endangered Species Act. Specifically, Plaintiffs claim that
Topsham Hydro is currently taking endangered Atlantic salmon through the operation of the
Pejepscot Project in violation of the ESA. Plaintiffs further allege that Topsham Hydro “has
neither an incidental take permit nor an incidental take statement authorizing its take of Atlantic
salmon at [the] Pejepscot [Project].” (Compl. ¶ 25.)
In response to the alleged violations of the ESA, Plaintiffs request that the Court
“[d]eclare Defendant to be violating the take prohibition of” the ESA. (Id. Relief Requested ¶ a.)
Plaintiffs also request that Topsham Hydro be ordered to: (1) adhere to a specified schedule in
preparing a biological assessment, a first step in obtaining an incidental take statement, (2)
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“prevent Atlantic salmon from swimming into operating turbines at [the] Pejepscot [Project]
unless authorized by an ITP or ITS,” and (3) “implement other appropriate measures to comply
with the ESA’s take prohibition pending the issuance of any ITP or ITS.” (Id. Relief Requested
¶ b.).
Prior to Plaintiffs’ filing of this case, Topsham Hydro began the process of working in
consultation with the Services and FERC toward the obtainment of an incidental take statement
pursuant to Section 7 of the ESA.3 (Biological Opinion at 3.) On September 19, 2012, the ESA
consultation process for the Pejepscot Project concluded with the NMFS’s issuance of a
Biological Opinion (“BO”) that included the ITS. The BO is “based on a review of the best
available scientific and commercial information.” (Id. at 4.) After over sixty pages of analysis
and review, the BO concludes that operation of the Pejepscot Project pursuant to the interim
species protection plan, “may adversely affect but is not likely to jeopardize the continued
existence of the GOM DPS of Atlantic salmon.”4 (Id. at 63.)
The BO contains the ITS for the Pejepscot Project, which authorizes a specific level of
Atlantic salmon takings at the Pejepscot Project and exempts those takings from liability under
3
Specifically, on July 14, 2010, Defendant Topsham Hydro was designated as the non-federal representative for the
purpose of informal consultation under the ESA, and, on December 30, 2011, Topsham Hydro submitted a
preliminary draft biological assessment (“BA”). (Biological Opinion at 3.) On April 12, 2012, the draft BA was
filed with FERC. (Id. at 4.)
4
The BO includes authorization of an interim species protection plan (“ISPP”). (Biological Opinion at 5.) Under
the ISPP, Topsham Hydro will be required to:
(1) expand the operating periods for existing upstream and downstream fish passage facilities
beginning in 2012; (2) investigate improvements in debris management at the passage facilities in
2012; (3) conduct studies of upstream and downstream Atlantic salmon passage between 2013 and
2015; and (4) implement debris management improvements between 2013 and 2015.
(Id.) During this period, information gained regarding the survival levels necessary to recover the Atlantic salmon
will be used to develop long-term protection measures. (Id. at 10.) The ISPP is designed to be adaptive.
Accordingly, if early study results “indicate that the upstream and downstream fishways at the Pejepscot Project are
not highly efficient at passing Atlantic salmon, Topsham Hydro will coordinate with NMFS and modify operations
at the Pejepscot Project to avoid and minimize effects to Atlantic salmon to the extent practicable.” (Id. at 12.)
Under the ISPP, Topsham Hydro will meet with NMFS annually to discuss study results and potential modifications
to the ISPP and the Pejepscot Project. (Id.)
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the ESA. (Id. at 63-67.) Under the ITS, Topsham Hydro will be required to implement
“reasonable and prudent measures” to “minimize and monitor” the incidental taking of Atlantic
salmon at the dam. (Id. at 65-66.) The measures include annual monitoring and reporting “to
confirm that [Topsham Hydro is] minimizing incidental tak[ings] and reporting all projectrelated observations of dead or injured salmon to NMFS.” (Id. at 66.) The ITS also contains
specific terms and conditions that must be followed for Topsham Hydro to be exempt from the
takings prohibitions of the ESA. (Id.) If the level of incidental taking is exceeded, agency
consultation will be reinitiated and the reasonable and prudent measures will be reviewed. (Id.)
Based on the BO and ITS, Topsham Hydro moved to dismiss the Complaint as moot.
Topsham Hydro asserts that the issuance of the ITS, exempting operations at the Pejepscot
Project from liability under the ESA, renders Plaintiffs’ claims under the ESA moot. Plaintiffs
have opposed that motion, arguing that despite the issuance of the BO and ITS, a live case or
controversy remains before the Court.
IV.
DISCUSSION
The Court readily concludes that Topsham Hydro has met its heavy burden of showing
mootness in conjunction with Plaintiffs’ claims for injunctive and declaratory relief under the
Endangered Species Act. Plaintiffs’ Complaint is predicated on the allegation that Topsham
Hydro does not have an ITS. (See Compl. ¶ 25 (“Topsham [Hydro] has neither an incidental
take permit nor an incidental take statement authorizing its take of Atlantic salmon at Pejepscot
[Project].”).) This foundational fact changed when NMFS issued its BO and ITS on September
19, 2012 and fundamentally altered the circumstances of this litigation.
The ITS issued by NMFS exempts from liability any taking of Atlantic salmon that is in
accord with the ITS from the issuance of the ITS to 2016. (Biological Opinion at 63-67.) See
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also Ramsey v. Kantor, 96 F.3d 434, 441 (9th Cir. 1996) (providing that Section 7(o) “indicates
that any taking-whether by a federal agency, private applicant, or other party-that complies with
the conditions set forth in the incidental take statement is permitted.”)
Plaintiffs even
acknowledged in their Complaint that the issuance of an incidental take statement would exempt
Topsham Hydro from liability under the ESA. (See Compl. ¶ 2 (“The ESA allows the [NMFS]
and [USFWS], under certain circumstances, to authorize an otherwise prohibited taking of an
endangered species if such taking is ‘incidental’ to, and not the purpose of, the carrying out of an
otherwise lawful activity.”); see also Pls.’ Opp’n To Topsham Hydro’s Renewed Mot. To
Dismiss (ECF No. 109) at 3 (“Topsham [Hydro] will be insulated from future ESA liability for
the four-year life of the ITS, so long as it complies with those conditions.”) (alterations in
original).) Case law confirms that the issuance of the ITS renders Plaintiffs’ ESA claim moot.
See Oregon Wild v. Connor, No. 6:09-CV-00185-AA, 2012 WL 3756327 at **2-3 (D. Or. Aug.
27, 2012) (declaring claims under Section 9 of the ESA moot because “[t]he actions challenged
by plaintiff in its second claim for relief have been explicitly authorized by NMFS under Section
7, and are no longer even allegedly ‘wrongful.’); Oregon Natural Res. Council v. Bureau of
Reclamation, No. 91-6284-HO, U.S. Dist. LEXIS 7418 at **24-25 (D. Or. April 5, 1993)
(stating that “FWS’s issuance of the biological opinion on the long-term operation of the Project,
and the adoption of that opinion by the Bureau, moots plaintiffs’ ESA claims.”); Southern Utah
Wilderness Alliance v. Madigan, No. 92-1094-LFO, 1993 WL 19650 at *1 (D.D.C. Jan. 6, 1993)
(dismissing as moot claims under ESA Section 9 because the Fish and Wildlife Service issued
incidental take statements along with its biological opinion).5
5
Plaintiffs incorrectly challenge that “in none of these cases did the plaintiffs seek remedial relief to remedy the
harm from take occurring before the ITS was issued.” (Pls.’ Opp’n To Topsham Hydro’s Renewed Mot. To Dismiss
at 13-14.) In Oregon Wild, however, the plaintiff cited U.S. Public Interest Research Group v. Atlantic Salmon of
Maine, LLC, 339 F.3d 23 (1st Cir. 2003), in arguing that its case was not moot because the court could either order
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Plaintiffs’ request for injunctive relief is similarly based on now outdated facts. First,
Plaintiffs request that the Court order Topsham Hydro to prepare a BA according to a specified
schedule. (Compl. Requested Relief ¶ b.) On April 12, 2012, Topsham Hydro’s draft BA was
filed with FERC. (Biological Opinion at 4.) Second, Plaintiffs request that the Court order
Topsham Hydro to “prevent Atlantic salmon from swimming into operating turbines at [the]
Pejepscot [Project] unless authorized by an ITP or ITS” and to “implement other appropriate
measures to comply with the ESA’s take prohibition pending the issuance of any ITP or ITS.”
(Compl. Requested Relief ¶ b (emphasis added).) Topsham Hydro now has a valid ITS based on
the “best available scientific and commercial information” that contains “reasonable and prudent
measures” designed to minimize and monitor the incidental taking of Atlantic salmon at the
Pejepscot Project. (Biological Opinion at 4, 65-67.) In the Complaint, Plaintiffs request only
prospective relief and that requested relief has been provided through the issuance of the BO and
ITS. Therefore, Plaintiffs’ request for injunctive relief is now moot. For the same reasons that
injunctive relief is not available, a declaratory judgment is also not available.
Moreover, the core of Plaintiffs’ complaint is that Atlantic salmon, an endangered
species, are being taken at the Pejepscot Project without an incidental take statement in violation
of the ESA. Plaintiffs’ claimed injury has been healed by the issuance of the ITS. There is no
grievance left in the Complaint for the Court to remedy. Therefore, the issuance of the BO and
ITS resolves Plaintiffs’ injury, renders Plaintiffs’ ESA claim moot and “forestall[s] any occasion
for meaningful relief.” Southern Utah Wilderness Alliance, 110 F.3d at 727.
relief to remediate alleged past takings or enter an order mandating compliance with the incidental take statement.
Pl.’s Resp. in Opp’n to Def.’s Mot. for J. on the Pleadings at 10-11, Oregon Wild v. Connor, 2012 WL 37563273
(D. Or. June 29, 2012) (No. 6:09-CV-00185-AA) (arguing that “based on the likely past takes that have occurred for
at least the last six months, the court could effect either of the following remedies” and describing the two above
mentioned remedies). The court nonetheless found plaintiff’s ESA claim moot. See Oregon Wild, 2012 WL
3756327 at *3 (D. Or. Aug. 27, 2012).
9
Plaintiffs advance two arguments in an attempt to keep their ESA claim alive. First,
Plaintiffs assert that the Court could award injunctive relief to remedy past alleged takings of
Atlantic salmon at the Pejepscot Project. Specifically, Plaintiffs ask the Court to order Topsham
Hydro to take steps beyond those in the ITS in order to “offset the harm caused by [Topsham
Hydro’s] unlawful takes of Atlantic salmon during the 2009 through 2012 migration seasons . . .
to reduce the harm to salmon during future migration seasons.” (Pls.’ Opp’ to Topsham Hydro’s
Renewed Mot. To Dismiss at 13.) In support of this argument, Plaintiffs point to U.S. Public
Interest Research Group v. Atlantic Salmon of Maine, LLC, 339 F.3d 23 (1st Cir. 2003), where
after the district court issued an injunction to remedy violations of the Clean Water Act, the
Maine Board of Environmental Protection issued a permit for the challenged activity that had
less stringent requirements than the injunction issued by the district court.
Id. at 27.
In
upholding the injunction, the First Circuit stated, “the court may grant additional injunctive relief
governing the post-permit operations of the companies insofar as the court is remedying harm
caused by their past violations.” Id. at 31 (alteration in original). Here, Plaintiffs ask the Court
to follow Atlantic Salmon and grant injunctive relief to remedy alleged past violations of the
ESA.
Even assuming that the Pejepscot Project did take Atlantic salmon in violation of the
ESA prior to the issuance of the ITS and that the Court retained jurisdiction over an ESA claim
that occurred wholly in the past, the Court would decline to issue further injunctive relief.6 In
Atlantic Salmon, at the time the district court issued the injunction, the permit had not yet been
issued. 339 F.3d at 27. That is not the case here. Instead, the Court has before it an extensive
6
The Court is not convinced by Defendant’s argument that Plaintiff’s complaint should be dismissed because it
alleges wholly past violations. See U.S. Public Interest Research Group v. Atlantic Salmon of Maine, LLC, 339
F.3d 23, 33-34 (1st Cir. 2003) (stating that “only citizen suits alleging that defendants are in violation of the Clean
Water Act at the time suit is brought are cognizable” (emphasis in original)).
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Biological Opinion “based on a review of the best available scientific and commercial
information.” (Biological Opinion at 4.) Contained within the BO and the ITS are “reasonable
and prudent measures [that] are necessary and appropriate to minimize and monitor incidental
take of Atlantic salmon.” (Id. at 65.) In this situation, the Court defers to a coordinate branch of
government and its well-researched and reasoned conclusions. Accordingly, even assuming the
Court has jurisdiction, the Court stays its hand and declines to issue injunctive relief.
Second, Plaintiffs argue that Topsham Hydro may not comply with the conditions in the
ITS. However, an alleged failure to comply with the terms of the ITS is not the case before the
Court. Instead, the Complaint repeatedly states that Topsham Hydro does not have an ITS or
ITP authorizing the alleged taking of Atlantic salmon in violation of the ESA. (See Compl. ¶¶ 2,
25, 34, Requested Relief ¶ b.) Following issuance of the ITS, Plaintiffs have not moved to
amend their Complaint to state a claim for relief in view of the newly issued ITS. Accordingly,
there is no claim that would provide a basis for relief for violation of the ITS in Plaintiffs’
Complaint.
Moreover, should Topsham Hydro fail to follow the terms of the ITS, including if
Topsham Hydro exceeds the authorized amount of takings of Atlantic salmon, then certain
provisions contained within the ITS itself are invoked. For example, “[i]f, during the course of
the action, the level of incidental take is exceeded, reinitiation of consultation and review of the
reasonable and prudent measures are required.” (Biological Opinion at 66.) The ITS also
contains an annual monitoring and reporting program “to confirm that Topsham Hydro is
minimizing incidental tak[ing] and reporting all project-related observations of dead or injured
salmon to NMFS.” (Id.) Since before Plaintiffs filed this action, Topsham Hydro has diligently
attempted to comply with the requirements and process for obtaining an ITS.
11
(See, e.g.,
Biological Opinion at 3-4; see id. at 11 (stating that “[b]y filing the BA and ISPP with FERC
absent any proposed federal action at the Pejepscot Project, Topsham Hydro is being proactive in
conducting section 7 consultation for the protection of listed Atlantic salmon.”)
Topsham
Hydro’s actions and the existence of an ITS render Plaintiffs’ ESA claim moot. Because
Plaintiffs’ Complaint has become moot, dismissal is “compulsory.” See Cruz, 252 F.3d at 533.
Therefore, Plaintiffs’ ESA claim is DISMISSED WITH PREJUDICE.
VI.
CONCLUSION
For the reasons explained herein, Topsham Hydro’s Renewed Motion To Dismiss (ECF
No. 108) is GRANTED. Additionally, because Plaintiffs’ sole claim is dismissed with prejudice,
the summary judgment motions (ECF Nos. 76 and 78) and motions in limine (ECF Nos. 71, 72,
73, 74 and 75) are DISMISSED AS MOOT.
SO ORDERED.
/s/ George Z. Singal
United States District Judge
Dated this 14th day of January, 2013.
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