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New England Anti-Vivisection Society v. United States Fish and Wildlife Service

United States District Court, District of Columbia

September 14, 2016



          KETANJI BROWN JACKSON United States District Judge

         The question of who can speak for the animals has long vexed federal judges in animal-welfare cases. As a general matter, courts have concluded that well-established principles of Article III standing permit “human beings [to] invoke their own injuries in fact to challenge harms done to animals[, ]” Cass R. Sunstein, Standing For Animals (With Notes On Animal Rights), 47 UCLA L. Rev. 1333, 1343 (2000), but it can be “exceptionally confusing” to apply settled standing doctrine to determine when and under what circumstances an act that is allegedly harmful to animals works a cognizable injury in fact to human plaintiffs, id. at 1334. In the instant case, a consortium of organizations and individuals led by the New England Anti-Vivisection Society (“NEAVS”), a non-profit organization that dedicates itself to animal-welfare issues, has claimed the right to file a lawsuit against the United States Fish and Wildlife Service (“FWS”) and its Director Daniel Ashe (collectively, “Defendants”) to seek to enjoin the agency's grant of a certain wildlife export permit.

         Specifically, Plaintiffs object to FWS's decision to permit Intervenor-Defendant Yerkes National Primate Research Center (“Yerkes”) to transfer eight of its chimpanzees to a zoo in the United Kingdom; the agency has authorized this act of exportation pursuant to Section 10 of the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-1544, on the condition that Yerkes commit to donating money to an unrelated non-governmental organization that purportedly will use the funds for a chimpanzee conservation program. Plaintiffs complain, inter alia, that the agency's decision to issue an export permit under these circumstances violates certain fundamental tenets of the ESA, the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551-559, 701-706, the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370h, and the Convention on International Trade in Endangered Species (“CITES”), 27 U.S.T. 1087 (Mar. 3, 1973). (See Am. Compl. (“Compl.”), ECF No. 6, ¶¶ 145-161.)) Among Plaintiffs' myriad objections to this particular permit arrangement is their contention that the plain language of the ESA prohibits FWS from establishing this sort of ‘pay-to-play' export permitting scheme, which, Plaintiffs say, at best inures to the benefit of endangered species only indirectly. (See id. ¶ 4 (asserting that Section 10 of the ESA “requires that the permitted activity itself ‘enhance the survival' of the chimpanzee species” (emphasis in original)).) Plaintiffs also contend, inter alia, that FWS purportedly failed “to consider the adverse impacts of its decision on efforts to conserve chimpanzees in the wild, ” and “to consider the precedential effect its decision will have on the disposition of other captive chimpanzees[.]” (Id. ¶ 5.)

         Before this Court at present are three partial cross-motions for summary judgment that Plaintiffs, FWS, and Yerkes have now filed. (See Pls.' Mot. for Partial Summ. J. (“Pls.' Mot.”), ECF No. 39; Defs.' Mot. for Partial Summ. J. (“Defs.' Mot.”), ECF No. 44; Def.-Intervenor's Cross-Mot. for Summ. J. (“Yerkes's Mot.”), ECF No. 42).[1] Plaintiffs focus primarily on the alleged harm to the chimpanzees at issue (Plaintiffs believe they would be far better off if they were sent to a sanctuary within the United States rather than “an unaccredited zoo” overseas (Pls.' Mem. in Supp. of Pls.' Mot. (“Pls.' Mem.”), ECF No. 39-1, at 9)), and they suggest that FWS's export-permit decision not only violates the ESA but also injures endangered species as a whole because, in Plaintiffs' view, it was “Congress's stated intention to limit substantially the number of exemptions that may be granted” under Section 10 of the ESA, and that intent is “completely eviscerated by allowing applicants to simply buy Section 10 permits by promising to contribute money to someone else” (id. at 32 (emphasis altered) (citation omitted)).[2] Plaintiffs also argue that the permit hurts NEAVS in various ways, including “mak[ing] it impossible for NEAVS to advocate for the release of these . . . chimpanzees to a U.S. sanctuary” (id. at 49-50 (citation omitted)), and that three of the individual plaintiffs-all of whom are former Yerkes employees who allegedly have formed “strong emotional bonds with these animals” (id. at 50 (citations omitted))-will suffer too if these chimpanzees are exported to England. For their part, FWS and Yerkes defend the agency's decision to issue the export permit on the merits, asserting that Section 10(a) is a “broad grant of discretion” that “allows for and does not preclude enhancement [of the species] by indirect means.” (Defs.' Mem. in Supp. of Defs.' Mot. (“Defs.' Mem.”), ECF No. 44-1, at 30-31; see also Yerkes's Mot. at 23-35.) Defendants also maintain that this Court lacks subject-matter jurisdiction over the instant action as a threshold matter, because, in their view, none of the plaintiffs have Article III standing to seek a court order setting aside the permit. (Defs.' Mem. at 20-30.)

         For the reasons explained fully below, this Court finds that Defendants have the better of the standing dispute. Despite the fact that Plaintiffs have presented a series of persuasive arguments regarding the meaning of the ESA and the extent to which FWS's interpretation undermines the goals and purposes of that statute, recent D.C. Circuit case law compels this Court to conclude that Article III requires something more than a potentially meritorious challenge to imprudent government action involving endangered animals: Plaintiffs themselves must have a concrete and particularized injury in fact that is actual or imminent, that is fairly traceable to Defendants' actions, and that a federal court's decision can redress. This Court concludes that Plaintiffs have not satisfied these threshold requirements under binding law regarding Article III standing in animal-welfare and environmental-law cases, and therefore, the Court is constrained to refrain from passing on the merits of Plaintiffs' arguments or granting them the relief they seek. See Scenic Am., Inc. v. U.S. Dep't of Transp., No. 14-5195, 2016 WL 4608153, at *3 (D.C. Cir. Sept. 6, 2016) (“Observing our Article III limitations is . . . always important, and particularly so in a case such as this, where we are asked to invalidate an action of the Executive branch.”). Consequently, Defendants' and Yerkes's partial motions for summary judgment must be GRANTED, Plaintiffs' partial motion for summary judgment must be DENIED, and the claims at issue herein must be dismissed. A separate order consistent with this Memorandum Opinion shall issue.

         I. BACKGROUND

         A. The Listing Of Chimpanzees As Endangered Species Under The ESA

         The ESA has been called “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” Babbitt v. Sweet Home Chapter of Cmtys. For a Great Or., 515 U.S. 687, 698 (1995) (internal quotation marks and citation omitted). The statute aims to conserve the populations and habitats of certain species, see 16 U.S.C. § 1531(b), and it accomplishes this by, among other things, authorizing the Department of the Interior to determine if a species is “endangered[, ]” because it is “in danger of extinction throughout all or a significant portion of its range[, ]” id. § 1532(6), or is “threatened[, ]” insofar as it is “likely to become an endangered species within the foreseeable future[, ]” id. § 1532(20). See also Id. § 1533(a). “The Department of the Interior administers the ESA for non-marine species and has delegated to the Fish and Wildlife Service (an agency within the Interior Department) the authority to list such species as ‘endangered' or ‘threatened' through rulemaking.” Otay Mesa Prop., L.P. v. U.S. Dep't of the Interior, 144 F.Supp.3d 35, 40 (D.D.C. 2015) (citing, inter alia, 50 C.F.R. § 402.01 (2015)).

         FWS has listed chimpanzees as a protected animal species for ESA purposes since 1976. See Determination of 26 Species of Primates as Endangered or Threatened Species, 41 Fed. Reg. 45990, 45990 (Oct. 19, 1976); Endangered and Threatened Wildlife and Plants; Listing All Chimpanzees as Endangered Species (“Chimpanzee Final Rule”), 80 Fed. Reg. 34500, 34500 (June 16, 2015). Beginning in 1990, the agency “[s]plit-[l]ist[ed]” chimpanzees (Pls.' Mem. at 13) based upon whether the animals at issue were wild or captive; wild chimpanzees were considered endangered, and captive chimpanzees were deemed threatened. See Chimpanzee Final Rule, 80 Fed. Reg. at 34500. Under the ESA, these different designations resulted in the application of different constraints on public and private actions that might impact the species. Compare 16 U.S.C. § 1538(a)(1) (banning a host of activities only with respect to endangered species), with Id. § 1533(d) (authorizing-but not requiring-the Executive to apply the protections found in § 1538(a)(1) to “any threatened species” via regulation).

         In 2015, after years of intensive lobbying by animal-welfare organizations, FWS eliminated the dichotomy between wild and captive chimpanzees, deeming all chimpanzees “endangered” within the meaning of the ESA. (Pls.' Mem. at 13-14; Defs.' Mem. at 13); see also Chimpanzee Final Rule, 80 Fed. Reg. at 34500. For present purposes, this designation was particularly consequential because Section 9 of the ESA categorically prohibits the export of endangered species, among other things. See 16 U.S.C. § 1538(a)(1)(A) (providing that, “with respect to any endangered species of fish or wildlife” that has been listed as such, “it is unlawful for any person subject to the jurisdiction of the United States” to “export any such species from the United States”).[3] But this export proscription is also subject to certain specified exceptions: Section 10 (titled “Exceptions”) establishes the circumstances under which the Secretary is authorized to permit the activities that Section 9 prohibits. See 16 U.S.C. § 1539.

         In pertinent part, the text of Section 10(a)(1) reads, as follows:

(a) Permits.
(1) The Secretary may permit, under such terms and conditions as he shall prescribe-
(A) any act otherwise prohibited by [Section 9] for scientific purposes or to enhance the propagation or survival of the affected species, including but not limited to, acts necessary for the establishment and maintenance of experimental populations[.]

16 U.S.C. § 1539(a)(1)(A) (emphasis added). Under Section 10(c), the Secretary is required to “publish notice in the Federal Register of each application for an exemption or permit which is made under this section[.]” Id. § 1539(c). And Section 10(c) mandates both that the Secretary's notice must “invite the submission from interested parties, within thirty days after the date of the notice, of written data, views, or arguments with respect to the application[, ]” and also that “[i]nformation received by the Secretary as a part of any application shall be available to the public as a matter of public record at every stage of the proceeding.” Id. In addition, pursuant to Section 10(d), FWS may not grant a permit to authorize otherwise-prohibited acts with respect to endangered species unless it publishes in the Federal Register a finding that the “exceptions were applied for in good faith, ” that they “will not operate to the disadvantage of [the] endangered species, ” and that issuing the permit “will be consistent with the purposes and policy” of the ESA. Id. § 1539(d).

         B. FWS's Approval Of Yerkes's Export-Permit Application

         On June 12, 2015, Yerkes-a research laboratory associated with Emory University (Yerkes's Mot. at 36)-requested that FWS grant it permission under CITES to export eight chimpanzees that Yerkes owns to the Wingham Wildlife Park (“Wingham”) in England. (See CITES Permit Application, AR 000012.)[4] Yerkes's staff had purportedly “spent significant time” in 2013 and 2014 “conducting an extensive due diligence review of Wingham's facility, staff, mission, and plans, ” including site visits (id. at 15 (citation omitted)), and in December of 2014, Yerkes “signed an agreement to donate to Wingham eight chimpanzees, all of which were bred and born at [Yerkes's] facilities” (id. (citation omitted)).[5] When FWS decided (in June of 2015) to list captive chimpanzees as an endangered species, Yerkes was forced to have to seek an exemption from Section 9's export prohibition in order to execute the Wingham agreement. (See Id. at 17 (explaining that Yerkes amended its CITES permit request “to include a request for a permit under the ESA following the ‘uplisting' of captive chimpanzees to endangered status” (citation omitted))).

         After Yerkes finished supplementing its application to include the ESA permit request, FWS published the required Section 10(c) notice. See Endangered Species; Wild Bird Conservation; Marine Mammals; Receipt of Applications for Permit (“Original 10(c) Notice”), 80 Fed. Reg. 62089, 62091 (Oct. 15, 2015). According to documents in the record, Yerkes originally hoped to satisfy Section 10(a) by making financial commitments to two organizations that conduct “programs that focus on benefits to wild populations of chimpanzees.” (Supplement to Yerkes Permit Request, AR 000257.) One of those organizations apparently opposed Yerkes's attempted export and rejected its donation once that organization discovered the full import of the action (see Letter from Kibale Chimpanzee Project to Wingham, AR 000355-57); the record is less pellucid with respect to the second, but it appears that organization also “withdrew its interest in receiving the donation.” (Decl. of R. Paul Johnson (“Johnson Decl.”), Ex. C. to Yerkes's Mot., ECF No. 42-9, ¶ 20.) Many other conservation groups and conservationists-including Plaintiffs-also objected. (See Pls.' Mem. at 16-20.)

         Then, on November 27, 2015, FWS informed NEAVS that (1) “there ha[d] been a shift in the organization and amount” of Yerkes's donation-Yerkes would now donate “$45, 000 per year for five years to the Population & Sustainability Network [(“PSN”), ]” and (2) the export permit would be granted to Yerkes within ten days. (FWS Email to NEAVS, AR 001359-60.) Three days later, Plaintiffs filed a lawsuit against FWS that challenged the permitting decision (see Pls.' Mem. at 22), and raised essentially the same claims that are before this Court at present, see Compl. ¶¶ 84-95, New England Anti-Vivisection Soc'y v. Jewell, No. 15-cv-2067 (D.D.C. filed Nov. 30, 2015), ECF No. 1. Because the recipient shift occurred after the relevant comment period had closed, see Original 10(c) Notice, 80 Fed. Reg. at 62089, FWS elected to reopen the comment period “to allow the public the opportunity to review additional information submitted for the issuance of [the] permit[, ]” Endangered Species; Receipt of Application for Permit, 81 Fed. Reg. 3452, 3452 (Jan. 21, 2016), and, as a result, Plaintiffs dismissed that other case (see Compl. ¶ 96). The new comment period subsequently closed, and FWS again decided (over strenuous objection from Plaintiffs and others (see Pls.' Mem. at 22-28) to grant the permit (see Issued Permit, AR 049927-35).

         FWS made a number of findings in connection with its decision to issue the export permit to Yerkes. (See, e.g., Enhancement Finding, AR 049912-14; NEPA Statement, AR 049915-18; Section 10(d) Finding, AR 049919-20.) The agency explained, for example, that it viewed Yerkes's application as “an application . . . for the exportation of [the chimpanzees] for the purpose of enhancing the survival of the species in the wild.” (Enhancement Finding, AR 049912.) Moreover, and significantly for present purposes, FWS specifically found that “this action [would] enhance the survival of the species” (id. AR 049914) not because the permitted action itself (i.e., sending these chimpanzees to Wingham) would accomplish this result, but because of the donation to PSN, which is a United Kingdom-based English non-governmental organization that “works at the intersection of sustainability, human health, and population dynamics to conserve biodiversity around the world” (id. AR 049912; see also Section 10(d) Finding, AR 049920 (“[FWS] determined that the export of the chimpanzees would enhance the propagation or survival of the species.”)). FWS explained that PSN had promised to use the funds to “initiat[e] a new . . . program specifically focused on how [the above-described] factors can be addressed to ameliorate current risks, such as habitat destruction and disease, which face wild chimpanzees in East Africa.” (Enhancement Finding, AR 049912.) FWS also proceeded to find that the export-permit process complied with Section 10(d)'s requirement that the permit was applied for in good faith and would not “operate to the disadvantage of chimpanzees within [their] natural range.” (Section 10(d) Finding, AR 049920.)

         The agency published notice of the Section 10(d) finding in the Federal Register on May 5, 2016. See Endangered Species; Marine Mammals; Emergency Exemption; Issuance of Permits, 81 Fed. Reg. 27170, 27170 (May 5, 2016).

         C. Procedural History

         Meanwhile, on January 29, 2016-during the pendency of the second comment period related to Yerkes's permit application-NEAVS filed a single-issue complaint in this Court, alleging that FWS had violated the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., because it “ha[d] failed in a timely ma[nn]er to release all of the information to which NEAVS [was] entitled” pursuant to two FOIA requests the organization had made in late 2015. (Compl. (“Original Compl.”), ECF No. 1, ¶¶ 1, 34.) After the second comment period closed and FWS made its final decision to grant Yerkes's export-permit application, NEAVS amended its complaint to add five other animal-rights organizations, four individuals, and “Georgia, ” one of the affected chimpanzees. (See generally Compl.).[6]

         The amended complaint also attacked the agency's permitting decision on several additional grounds. (See Id. ¶¶ 145-61.) In brief, Plaintiffs claimed that (1) FWS's actions were not in accordance with the ESA and its implementing regulations, and thus violated the APA (see Id. ¶¶ 145-53 (Count I)); (2) FWS had transgressed Article III of CITES (see Id. ¶¶ 154-55 (Count II))[7]; (3) FWS had failed to comply with certain NEPA assessment-related requirements (see Id. ¶¶ 156-57 (Count III))[8]; and (4) FWS's permitting officer and other agency officials had acted in various inappropriate ways that amounted to arbitrary and capricious decisionmaking in violation of the APA's bedrock principles (see Id. ¶¶ 158-61 (Count IV)). The amended complaint also persisted with the aforementioned FOIA claim. (See Id. ¶ 162 (Count V).)

         On April 27, 2016, Yerkes requested permission from this Court to intervene in this lawsuit as a defendant (see Consent Mot. to Intervene, ECF No. 9); the Court granted Yerkes's request on April 29, 2016 (see Mem. Op. & Order, ECF No. 15). Thereafter, Plaintiffs filed a motion for a preliminary injunction that sought to enjoin execution of the permitted activity pending final resolution of the case. (See Pls.' Mot. for Preliminary Injunction (“P.I.”), ECF No. 18, at 1.) This Court held a hearing on Plaintiffs' P.I. motion on May 24, 2016 (see Order, ECF No. 27), after which the Court denied the motion as moot in light of Yerkes's agreement to suspend its transfer of the chimpanzees voluntarily in order to permit the matter to be briefed as cross-motions for summary judgment and decided with the benefit of a full administrative record (see Id. at 1).

         Plaintiffs filed their cross-motion for summary judgment on July 8, 2016. In their memorandum in support of the motion, Plaintiffs home in on a subset of the claims in their wide-ranging complaint. For example, Plaintiffs specifically argue that Section 10 of the ESA does not authorize FWS's permitting decision, insofar as that section requires (and FWS failed to find) that the permitted act itself enhance the propagation or survival of the species. (See Pls.' Mem. at 29-33.) Additionally, Plaintiffs assert that, even if the ESA permits FWS's interpretation, FWS unlawfully delegated its duty to make the enhancement finding to a third party (see Id. at 33-36); that the grant of the permit somehow violates the consultation requirement in Section 7(a) of the ESA (see id. at 45 n.34)[9]; and that FWS failed to comply with the APA's mandate regarding reasoned decisionmaking because the agency improperly disregarded certain public comments (see Id. at 36-38). Plaintiffs also contend that the NEPA's requirement that the agency conduct an environmental impact assessment and produce the corresponding statement applied to the permit determination, because the categorical exclusion is inapplicable, either on its own terms or because extraordinary circumstances apply. (Id. at 38-45.)[10]

         Defendants' cross-motion for summary judgment, which was filed August 4, 2016, not only challenges Plaintiffs' claims on the merits, it also contends that this Court lacks subject-matter jurisdiction because Plaintiffs lack Article III standing to maintain this lawsuit. (See generally Defs.' Mem.) In this regard, Defendants assert that the informational, organizational, and aesthetic injuries upon which Plaintiffs rely for standing (discussed at length in Part III) do not constitute actual or imminent injuries in fact (see Id. at 19-30). Yerkes spends most of its cross-motion memorandum attempting to defend the rationality of FWS's conclusion that a sizable monetary donation to an organization that supports (human) family planning and reproductive health services will benefit chimpanzees as a species (see, e.g., Yerkes's Mot. at 24-25, 36-41), but Yerkes also generally agrees with Defendants that, in any event, Plaintiffs have failed to assert an injury in fact that FWS's action caused and that will likely be remedied if Plaintiffs prevail (see Id. at 49-54).


         As noted above, Plaintiffs' complaint asks this Court to set aside FWS's decision to issue an export permit to Yerkes on a variety of grounds. (See Compl. ¶¶ 145-161.) The motions at issue here are styled as motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure; however, “in cases involving review of a final agency action[, ] . . . the standard set forth in [Rule 56] does not apply because of the limited role of a court in reviewing the administrative record.” Otsuka Pharm. Co. v. Burwell, No. 15-1688, 2016 WL 4098740, at *6 (D.D.C. July 28, 2016) (alterations in original) (internal quotation marks and citation omitted). Rather, the Court “act[s] as an appellate tribunal[.]” XP Vehicles, Inc. v. U.S. Dep't of Energy, 156 F.Supp.3d 185, 191 (D.D.C. 2016) (first alteration in original) (internal quotation marks and citation omitted). Thus-assuming the court has jurisdiction to review the claims brought in the case-the court's function is “solely ‘to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.'” Otsuka Pharm., 2016 WL 4098740, at *6 (quoting ViroPharma, Inc. v. Hamburg, 916 F.Supp.2d 76, 79 (D.D.C. 2013)). That task includes ensuring that the agency action was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]” 5 U.S.C. § 706(2)(A).

         As always, however, before the court can render a decision on the merits of a plaintiff's challenge to agency action, it must first satisfy itself that it has jurisdiction over the plaintiff's claims because the plaintiff who seeks the court's assistance meets the “irreducible constitutional minimum of standing[.]” Bennett v. Spear, 520 U.S. 154, 167 (1997) (internal quotation marks and citation omitted); see also Scenic Am., 2016 WL 4608153, at *3-4. Standing doctrine “helps preserve the Constitution's separation of powers and demarcates ‘the proper-and properly limited-role of the courts in a democratic society[, ]'” Coal. for Mercury-Free Drugs v. Sebelius, 671 F.3d 1275, 1279 (D.C. Cir. 2012) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)), and thus, must not be viewed as a “troublesome hurdle to be overcome if possible so as to reach the ‘merits' of a lawsuit which a party desires to have adjudicated[, ]” Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 476 (1982). Pursuant to our Constitution, the role of the federal courts “is to redress or prevent actual or imminently threatened injury to persons caused by private or official violation of law[, ]” and “[e]xcept when necessary in the execution of that function, courts have no charter to review and revise legislative and executive action.” Summers v. Earth Island Inst., 555 U.S. 488, 492 (2009) (citation omitted). Accordingly, and as a general matter, the threshold inquiry for any federal court is whether the plaintiff has alleged, and ultimately proven, “such a personal stake in the outcome of the controversy as to warrant [the] invocation of federal-court jurisdiction.” Id. at 493 (emphasis added) (internal quotation marks and citation omitted); cf. Lin-Manuel Miranda, The Room Where it Happens, on Hamilton (Atlantic Records 2015) (“[Y]ou don't get a win unless you play in the game.”).

         The three essential elements of Article III standing are by now well established. The Constitution requires:

(1) that the plaintiff have suffered an “injury in fact”-an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of-the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Bennett, 520 U.S. at 167 (citation omitted). It is axiomatic that the party that invokes federal jurisdiction has the burden of establishing these elements, and as relevant here, it is also clear that, “at the summary judgment stage, such a party can no longer rest on mere allegations, but must set forth by affidavit or other evidence specific facts” that support his claim of injury, causation, and redressability. Fed. Forest Res. Coal. v. Vilsack, 100 F.Supp.3d 21, 34 (D.D.C. 2015) (quoting Clapper v. Amnesty Int'l USA, 133 S.Ct. 1138, 1148-49 (2013) (internal quotation marks omitted)); see also Bennett, 520 U.S. at 168 (noting that, at summary judgment, the motion-to-dismiss practice of ...

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