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Clifford Tracy
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lastchancelarry



Joined: 30 Dec 2011
Posts: 158
Location: hood river, ore

PostPosted: Tue Feb 07, 2012 6:09 am    Post subject: Clifford Tracy  Reply with quote

tracy got a year in the bighouse..here is the link..originally posted by alaskaflounder at OGH:
http://www.oregonlive.com/pacific...ld_hill_mans_second_unlawful.html
I wonder what did he do wrong..what shoulda he done...basically woulda. coulda and shoulda....Can we disect and examine this case and learn from it????

If we are saying it is unlawful for the agency to force us to get permits under the mining acts of 1866,1870 and 1872, the why was he convicted?
I know some of why but I think this is a good opprtunity for us to use Tracy to educate me you and all
lastchance
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Hefty



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PostPosted: Tue Feb 07, 2012 9:55 am    Post subject: Reply with quote

I beleive it all started when he applyed for a POO.
Wrong thing to do.
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lastchancelarry



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PostPosted: Tue Feb 07, 2012 10:18 am    Post subject: Reply with quote

yea hefty hefty hefty..always wanted to say that.. Laughing I think 1866 or someone wrote that somewhere on one of these forums....What do you think? can we use this case as a learning tool..I mean it is a real situation..Im assuming he was breaking some rules under his POO for not having a settling pond or something..
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Hefty



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PostPosted: Tue Feb 07, 2012 2:15 pm    Post subject: Reply with quote

This is from another thread under court cases....


1866



Joined: 02 Jan 2012
Posts: 89
Location: Jefferson Mining District
Posted: Wed Jan 04, 2012 3:27 am    Post subject:    

--------------------------------------------------------------------------------

It's true that the last Tracy case was a 50/50 split. Ironically, he managed to beat the CWA violation, which should have been the hardest to beat.

Having attended the case that day, I believe that he got out of the CWA violation due to the fact that he and his assistant testified that they were actively monitoring seepage from his holding pond and actively employing means to limit said seepage. A neighboring miner also testified that Tracy had come to him for advice on how to prevent his pond from leaking. Tracy also explained that there was a process involved to seal the holding pond that usually required time to allow the clay to seal any cracks. The jury paid very close attention to these testimonies, so clearly, they believe that Cliff was not just wantonly discharging and were therefore sympathetic.

Beyond that, Cliff's big mistake was that he filed the NOI. That's where they got him.
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Hefty



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PostPosted: Tue Feb 07, 2012 4:36 pm    Post subject: Reply with quote

This was a mess from the start.....




December 09, 2011  
By Paul Fattig
Mail Tribune
With a straw in his teeth and sunglasses pushed back on his head, Gold Hill miner Clifford R. Tracy served as his own attorney Thursday afternoon in the first day of a lively federal trial in which he is charged with illegal mining.

Cocky one moment then subdued the next in the jury trial expected to conclude today, Tracy repeatedly cited the 1872 mining law as his overriding defense while castigating U.S. Bureau of Land Management officials for what he believes is an attempt to prohibit legal mining through over-regulation.

"You are looking at a guy who has been trying to play by the rules for 20 years," Tracy said, later describing BLM regulations as "bureaucracy running amok."

He is accused of illegally discharging sediment into Galice Creek in mid-June while operating the Stray Dog mine that straddles the salmon-rich stream. It flows into the Rogue River about 20 miles west of Grants Pass.

Tracy, 39, said he would likely die before he received the necessary permits, and wryly added that BLM officials would probably show up at his funeral with them.

At that point, he would be "up above, hoping I could do one last poo," he said.

The comment sent a slight gasp through the Medford courtroom of U.S. District Court Judge Owen Panner who periodically admonished Tracy for his lack of legal decorum. The judge told the miner at the outset to remove the straw from his mouth when he was addressing the bench, and overruled his objections at least eight times during the first day of the trial.

Through it all, assistant U.S. Attorney Douglas W. Fong calmly laid out the mining regulations to the jury. Tracy, who was convicted of a similar charge on Sucker Creek in the Rogue River-Siskiyou National Forest in 2009, knew what he had to do to abide by the law, the prosecutor said.

The bottom line, Fong stressed, was that mining was perfectly legal when the miner obeys the laws of the land.

"Mining is OK as long as the participant follows the rules like everybody else," he said, noting the laws are in place to protect everything from fish habitat to water quality.

"And this is a part of Galice Creek which has critical habitat for endangered coho salmon," he stressed.

Tracy ignored requests by BLM officials to file necessary paperwork for the operation, then kept mining after he was told to stop, Fong said.

Photographs taken of the operation and displayed by Fong show a cloudy plume in the stream, a settling pond, Tracy operating a large excavator and a dump truck.

According to BLM officials called as witnesses by Fong, Tracy had filed a notice with the BLM in mid-February to conduct the mining operation on the stream about 21/2; miles upstream from its confluence with the Rogue. As part of the operation, he planned to drive across the stream at a ford about a half-mile downstream from the mining operation to bring fuel and supplies to the claim.

However, BLM geologist Diane Parry testified that Tracy did not fulfill the necessary requirements to move forward with his planned operation. Moreover, he had been informed both verbally and in writing to that effect, she said.

She and fellow BLM geologist Kirby Bean went to a mining claim 11/2; miles downstream from the Stray Dog claim on June 16 when they noticed the stream's water was cloudy with sediment, she said. They followed the plume upstream to its source at the Stray Dog, she said.

The next day they were accompanied by two BLM law enforcement officers who attempted to give Tracy, who was operating an evacuator, a suspension order to stop his operation, Parry said.

"Mr. Tracy chose to get back on the excavator and continue mining," Parry said.

During cross examination, Tracy, who was assisted in his defense by Brian Butler, an assistant federal defender, noted that he had worked with Parry using similar mining methods on other mining claims without any problems.

"Is that not a success story?" he asked.

For the prosecution, John Gasik, a senior engineer with the Oregon Department of Environmental Quality, testified that Tracy had none of the permits necessary to pollute a stream as required by state law.

In his defense, Tracy called Ronald Byrd, a miner with a claim adjacent to the Stray Dog, who testified that the ford Tracy proposed to use had been utilized by local mining operations for more than a century.

He also backed up Tracy's assertion that his method of putting alfalfa in the settling pond to keep the pond from "weeping" was commonly used by miners.

Fellow miner James Cobb, who worked with Tracy, testified that they had made an effort to keep sediments out of the stream.

Under questioning from Fong, Cobb said he did not know if Tracy had the necessary permits. However, he said a BLM law enforcement officer's attempt to stop the operation was not lawful.

"What usurps the mining law?" Cobb asked, then added, "I don't recognize his authority to stop us."

In the 2009 case, Tracy was placed on 12 months probation for his illegal mining, received a small fine and placed on a year's probation.

Reach reporter Paul Fattig at 776-4496 or email him at pfattig@mailtribune.com.







December 10, 2011  
By Paul Fattig
Mail Tribune
A federal court jury found gold miner Clifford R. Tracy guilty Friday afternoon of illegal mining following an often-feisty, two-day trial in Medford.

However, Tracy, who acted as his own attorney, calling himself to the witness stand and loosely quoting Abraham Lincoln's iconic Gettysburg address as part of his defense, was found innocent of discharging a pollutant into a stream, the second count he faced.

The charges stemmed from a June mining operation involving the Stray Dog placer claim on Galice Creek in the U.S. Bureau of Land Management's Medford District. The creek flows into the Rogue River about 20 miles west of Grants Pass.

Sentencing on the misdemeanor conviction is set for Feb. 6 in federal court in Medford, with U.S. District Court Judge Owen Panner presiding.

The finding by the jury of seven women and five men came a few hours after Tracy and assistant U.S. Attorney Douglas Fong dueled verbally Friday morning.

In essence, Fong told the jury, the miner raised his middle finger to the government and the public by ignoring laws intended to protect the stream, which provides critical habitat for endangered coho salmon.

Moreover, Tracy did not stop mining when BLM law enforcement officers told him to stop his operation on June 17, after officials discovered a sediment plume in the stream, Fong said.

"What does he say? Middle finger — that was his response," the prosecutor said. "He said, 'No, I'm going to do what I damn well please.'

"It is your land, the public's land," Fong told the jury. "The defendant would have you think it is his land. It is public land."

Nor did Fong accept Tracy's argument that the BLM is against mining.

"He wants to have you believe the government hates miners," Fong said, adding that the BLM is charged with being stewards of the public land for all users. The agency is screamed at by environmentalists and miners alike, he noted.

Earlier in the trial, Fong displayed photographs of Tracy's mining operation which showed a cloudy plume in the stream and a muddy settling pond, along with Tracy operating a large excavator and a dump truck. The prosecutor also called BLM geologists and a fisheries biologist to the stand to testify against Tracy.

Fong observed Friday that the placer mining claim was not Tracy's, and that Tracy was simply operating it.
"Yet he has the audacity to say, 'This is my property right,' " Fong said.

"What is happening here is the defendant is trying to change the rules on the government," he added. "The government told him over and over again (that he was breaking the law). He would not listen. The only voice he hears is his own."

Tracy took the witness stand in his own defense, but only after Panner, just as he had done Thursday, told the miner to take a straw out of his mouth.

"There is a prohibition on mining," Tracy told the courtroom. "If you couldn't have a beer for two years, you would consider that a prohibition."

At times asking himself questions which he then answered, Tracy said bureaucracy was effectively stopping legal mining.

"Anymore, it's just a paper game," he said, referring to himself in the third person. "Tracy was fed up — Tracy would rather be dead than play this game," he said.

If his property rights are taken away as a miner, then no property rights are safe, he warned, adding that he had agreed to the BLM's requests until officials began raising the requirements each time he met with them.

"I'm a good citizen," he said.

With that, he recited Lincoln's Gettysburg address of 1865. But after he completed the final lines, "that government of the people, by the people, for the people, shall not perish from the earth," he changed the words.

"Not by the environmentalists, for the environmentalists," he said. And "not by the agencies, for the agencies."

Earlier that morning, after Tracy called John Nolan, a retired U.S. Forest Service mining administrator, to the witness stand in an effort to establish he had worked within the law in the past, Judge Panner disallowed the testimony.

"The fact you did mine properly before does not have any bearing on this case," Panner told Tracy.

In testifying for the defense, Barbara Wolf Miner, whose late husband, Ray Wolf, was a gold miner, said her husband had tried for more than a decade to obtain a plan of operation for a mining claim from the BLM in the Illinois Valley.

"In 2007, right before he passed away, the BLM issued a plan of operation for the claim," she said.

Repeatedly citing the 1872 Mining Act, Tracy said the BLM has a history of blocking legal mining with paperwork.

"The real question is: Do I have a right to mine?" he said. "Yes, I do."

Panner later told Tracy that regulations were the law of the land, no matter what the miner thought of them.

"Most everybody dealing with government has problems," he said. "The regulations are the law and they must be followed."

In 2009, Tracy was convicted of illegal mining on Sucker Creek in the Rogue River-Siskiyou National Forest. He was placed on 12 months probation for his illegal mining and received a small fine.

"The last time he did this, the taxpayers got stuck with over $20,000 in cleanup and remediation at the site," said George Sexton, conservation director for the Klamath-Siskiyou Wildlands Center in Ashland, after the trial.

"I hope after his illegal actions this time that the taxpayers don't get stuck with paying his tab again," he said.

Reach reporter Paul Fattig at 541-776-4496 or email him at pfattig@mailtribune.com
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lastchancelarry



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Location: hood river, ore

PostPosted: Wed Feb 08, 2012 4:57 am    Post subject: Reply with quote

so Tracy filed a NOI and was asked to file a POO. he did not...What would have happened he he had not filed the NOI?

"Panner later told Tracy that regulations were the law of the land, no matter what the miner thought of them.
"Most everybody dealing with government has problems," he said. "The regulations are the law and they must be followed." "

Filing a Notice of intent is a regulation, so what is confusing to me is if tracy had not filed a noi, how would he be not guilty...the judge is saying that the regs are the law and must be followed...Their requirement to file a noi and then a poo are regulations....
So by filing the  noi, he brings himself under regulation by blm but what is to stop the feds from prosecuting him/anyone from prosecuting the miner for failing to follow the law(not filing a noi)?
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Hefty



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PostPosted: Wed Feb 08, 2012 6:12 am    Post subject: Reply with quote

Also it says he did not own that claim, not owning the claim.

Where was the owner of this claim through all of this?
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Hefty



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PostPosted: Wed Feb 08, 2012 7:14 am    Post subject: Reply with quote

Now I am confussed???







2010 U.S. App. LEXIS 22152,*;401 Fed. Appx. 224

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CLIFFORD R. TRACY, Defendant - Appellant.

No. 09-36128

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

401 Fed. Appx. 224; 2010 U.S. App. LEXIS 22152

October 8, 2010, Argued and Submitted, Portland, Oregon


October 27, 2010, Filed

NOTICE:  

PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

SUBSEQUENT HISTORY:   US Supreme Court certiorari denied by Tracy v. United States, 2011 U.S. LEXIS 2411 (U.S., Mar. 21, 2011)

PRIOR HISTORY:    [*1]  


Appeal from the United States District Court for the District of Oregon. D.C. No. 1:09-cv-03078-PA. Owen M. Panner, District Judge, Presiding.
United States v. Tracy, 2010 U.S. App. LEXIS 22140 (9th Cir. Or., Oct. 27, 2010)
United States v. Tracy, 2009 U.S. Dist. LEXIS 105044 (D. Or., Nov. 10, 2009)

DISPOSITION:  

AFFIRMED.

COUNSEL:   For UNITED STATES OF AMERICA, Plaintiff - Appellee: Neil Evans, Assistant U.S. Attorney, Ronald K. Silver, Kelly A. Zusman, Assistant U.S. Attorney, OFFICE OF THE U.S. ATTORNEY, Mark O. Hatfield U.S. Courthouse, Portland, OR.

For CLIFFORD R. TRACY, Defendant - Appellant: Brian C. Butler, Assistant Federal Public Defender, FPDOR - FEDERAL PUBLIC DEFENDER'S OFFICE (MEDFORD), Medford, OR.

JUDGES:   Before: TASHIMA, PAEZ and CLIFTON, Circuit Judges.


OPINION  

MEMORANDUM*

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -*

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Defendant Clifford Tracy appeals the judgment and injunction entered by the district court in favor of the United States on the Government's civil complaint alleging that Tracy trespassed on National Forest land. We affirm.

Tracy's due process argument in this case is identical to the one raised in his appeal of his criminal conviction, No. 09-30408. We reject Tracy's due process argument here as we did there. Tracy failed to avail himself  [*2]  of the due process available to him and as such cannot now seek its protection after taking matters into his own hands. See Hudson v. Palmer, 468 U.S. 517, 539, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984) (O'Connor, J. concurring); United States v. Lowry, 512 F.3d 1194, 1203 (9th Cir. 2008).

We also reject Tracy's argument that he cannot be a trespasser because he had a right of possession in the land as the holder of an unpatented mining claim. The Mining Law of 1872 makes clear that the possessory right of the holder of an unpatented mining claim is conditional on "comply[ing] with the laws of the United States, and with State, territorial, and local regulations not in conflict with the laws of the United States governing [his] possessory title." 30 U.S.C. § 26. Subsequent statutes further demonstrate that Tracy's right to possession is subject to his compliance with Forest Service regulations. The Organic Act provides that any person entering the a national forest "must comply with the rules and regulations covering such National Forest." 16 U.S.C. § 478. The Surface Resources Act of 1955 amended the Mining Law to make any unpatented mining claim discovered after 1955 "subject . . . to the right of the United States  [*3]  to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof." 30 U.S.C. § 612(b). Tracy failed to comply with Forest Service regulations governing his mining claim. He therefore had no right to possess the land and was a trespasser.We have previously held conduct similar to Tracy's to constitute trespass. See, e.g., United States v. Brunskill, 792 F.2d 938 (9th Cir. 1986) (affirming district court's injunction requiring removal of structures on claim where defendants did not have approved plan of operation); United States v. Goldfield Deep Mines Co. of Nev., 644 F.2d 1307, 1310 (9th Cir. 1981).

We reject the argument that an individual can only be a trespasser if his mining claim is held invalid. As we stated in Goldfield, "the right to protect Forest Service lands from waste is separate from and in addition to the right to challenge mining claims." Id. at 1309. Similarly we find unpersuasive Tracy's attempt to distinguish the above cases on the ground that the defendants in those cases were also found to have invalid mining claims. In Brunskill we explicitly stated that "[w]e affirm the district court order, but on the limited grounds  [*4]  that the Brunskills do not have an approved plan of operation . . . . We do not pass on whether . . . the mining claims at issue are valid." Brunskill, 792 F.2d at 938.

AFFIRMED.
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Hefty



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PostPosted: Wed Feb 08, 2012 7:49 am    Post subject: Reply with quote

Do these judges know what they are talking about here???


We also reject Tracy's argument that he cannot be a trespasser because he had a right of possession in the land as the holder of an unpatented mining claim. The Mining Law of 1872 makes clear that the possessory right of the holder of an unpatented mining claim is conditional on "comply[ing] with the laws of the United States, and with State, territorial, and local regulations not in conflict with the laws of the United States governing [his] possessory title." 30 U.S.C. § 26. Subsequent statutes further demonstrate that Tracy's right to possession is subject to his compliance with Forest Service regulations. The Organic Act provides that any person entering the a national forest "must comply with the rules and regulations covering such National Forest." 16 U.S.C. § 478. The Surface Resources Act of 1955 amended the Mining Law to make any unpatented mining claim discovered after 1955 "subject . . . to the right of the United States  [*3]  to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof." 30 U.S.C. § 612(b). Tracy failed to comply with Forest Service regulations governing his mining claim. He therefore had no right to possess the land and was a trespasser.
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Hefty



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PostPosted: Wed Feb 08, 2012 8:09 am    Post subject: Reply with quote

Here are the codes they talk about....

16 U.S.C. § 478 : US Code - Section 478: Egress or ingress of actual settlers; prospecting
Search 16 U.S.C. § 478 : US Code - Section 478: Egress or ingress of actual settlers; prospecting
Nothing in sections 473 to 478, 479 to 482 and 551 of this title
shall be construed as prohibiting the egress or ingress of actual
settlers residing within the boundaries of national forests, or
from crossing the same to and from their property or homes; and
such wagon roads and other improvements may be constructed thereon
as may be necessary to reach their homes and to utilize their
property under such rules and regulations as may be prescribed by
the Secretary of Agriculture. Nor shall anything in such sections
prohibit any person from entering upon such national forests for
all proper and lawful purposes, including that of prospecting,
locating, and developing the mineral resources thereof. Such
persons must comply with the rules and regulations covering such
national forests.


30 USC 26 - Sec. 26. Locators' rights of possession and enjoyment
US Code - Title 30: Mineral Lands and Mining  
Text

The locators of all mining locations made on any mineral vein, lode, or ledge, situated on the public domain, their heirs and assigns, where no adverse claim existed on the 10th day of May 1872 so long as they comply with the laws of the United States, and with State, territorial, and local regulations not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations.

But their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as above described, through the end lines of their locations, so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges.

Nothing in this section shall authorize the locator or possessor of a vein or lode which extends in its downward course beyond the vertical lines of his claim to enter upon the surface of a claim owned or possessed by another.

Codification

R.S. Sec. 2322 derived from act May 10, 1872, ch. 152, Sec. 3, 17 Stat. 91.

30 USC 612 - Sec. 612. Unpatented mining claims
US Code - Title 30: Mineral Lands and Mining
 
Text

 (a) Prospecting, mining or processing operations Any mining claim hereafter located under the mining laws of the United States shall not be used, prior to issuance of patent therefor, for any purposes other than prospecting, mining or processing operations and uses reasonably incident thereto. (b) Reservations in the United States to use of the surface and surface resources Rights under any mining claim hereafter located under the mining laws of the United States shall be subject, prior to issuance of patent therefor, to the right of the United States to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof (except mineral deposits subject to location under the mining laws of the United States). Any such mining claim shall also be subject, prior to issuance of patent therefor, to the right of the United States, its permittees, and licensees, to use so much of the surface thereof as may be necessary for such purposes or for access to adjacent land: Provided, however, That any use of the surface of any such mining claim by the United States, its permittees or licensees, shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto: Provided further, That if at any time the locator requires more timber for his mining operations than is available to him from the claim after disposition of timber therefrom by the United States, subsequent to the location of the claim, he shall be entitled, free of charge, to be supplied with timber for such requirements from the nearest timber administered by the disposing agency which is ready for harvesting under the rules and regulations of that agency and which is substantially equivalent in kind and quantity to the timber estimated by the disposing agency to have been disposed of from the claim: Provided further, That nothing in this subchapter and sections 601 and 603 of this title shall be construed as affecting or intended to affect or in any way interfere with or modify the laws of the States which lie wholly or in part westward of the ninety-eighth meridian relating to the ownership, control, appropriation, use, and distribution of ground or surface waters within any unpatented mining claim. (c) Severance or removal of timber Except to the extent required for the mining claimant's prospecting, mining or processing operations and uses reasonably incident thereto, or for the construction of buildings or structures in connection therewith, or to provide clearance for such operations or uses, or to the extent authorized by the United States, no claimant of any mining claim hereafter located under the mining laws of the United States shall, prior to issuance of patent therefor, sever, remove, or use any vegetative or other surface resources thereof which are subject to management or disposition by the United States under subsection (b) of this section.

Any severance or removal of timber which is permitted under the exceptions of the preceding sentence, other than severance or removal to provide clearance, shall be in accordance with sound principles of forest management.

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