The Bruin Battle

By on July 3, 2018

As Wyoming’s grizzly hunting season approaches, Native tribes and wildlife advocates are placing their bets on federal lawsuits meant to halt the hunt

JACKSON HOLE, WY – The grizzly bear is a sacred animal to Dr. David Bearbow Bearshield, a member of the Southern Cheyenne and Arapaho tribes. His elders taught him that it is sacrilegious to say the name of the grizzly bear aloud. He learned that the grizzly was his people’s spiritual relative, and that it was possible to commune with the bear in the Cheyenne language.

Bearshield grew up in Oklahoma, where the grizzly was driven to extinction decades ago by European settlement. A few states away, he would forge a spiritual connection with a grizzly when he was invited to Livingston, Montana, to meet Brutus, a grizzly rescued from captivity and raised by Casey Anderson, a naturalist and host of National Geographic WILD.

Bearshield journeyed into the forested foothills and felt no fear as he sat a few feet from the six-foot tall, 800-pound carnivore. Donning a traditional Cheyenne headdress and wrapped in a tribal blanket, Bearshield began to speak to Brutus in the Cheyenne language. He told Brutus that he meant no harm and that he was there as a protector of all grizzly bears. Brutus was calmed by the soothing words and laid down peacefully next to Bearshield.  

The encounter was transformative.

Today the Montanan works to preserve Native American religious rights and tribal self-determination through the protection of the bear. He is chair of Guardians of Our Ancestors’ Legacy (GOAL), a Native American advocacy group focused on the bruin. Under his leadership, GOAL has grown to a coalition of more than 50 tribes across the American West. It relies on activism, petitions, and public campaigns to raise awareness about grizzly conservation and to expand its coalition. Now it is also involved in litigation against the U.S. Fish and Wildlife Service over the delisting of the grizzly bear.

Bearshield is passionate about Native American culture, people “and honoring our ancestors so that our future generations will have what our ancestors made the ultimate sacrifice for: their identity, their culture, and their lands,” he said.

“That is what the grizzly bear represents. To us, the grizzly bear is the physical manifestation of the spirit of our Mother, the Earth. There is nothing more personal than that.”

In summer 2017, grizzly bears in the Yellowstone region faced a precarious future when the U.S. Fish and Wildlife Service (FWS) removed the bear from the endangered species list. FWS officials said the grizzly population of the Greater Yellowstone Ecosystem (GYE) had recovered sufficiently and was no longer threatened with extinction.

For Native Americans, the decision was earth-shattering. Chief Stanley Grier of the Piikani Nation called the delisting “cultural genocide.”

“It really attacks our whole identity as a people,” he said. “The grizzly are a vital component to our way of life, our worldview.”

Bearshield and Grier joined other Native American tribes and traditional leaders to file a lawsuit: Crow et al vs. Zinke. The tribes were not alone.

A total of six lawsuits were promptly filed against the U.S. Department of the Interior and the FWS over the delisting. Environmental organizations like the Sierra Club and Wild Earth Guardians were the plaintiffs in four of the suits. A separate lawsuit was filed by Robert Aland, a tax attorney from Illinois who lives part-time in Wilson, Wyoming.  

The Native American plaintiffs, however, have unique claims unlike those in the other lawsuits. Their arguments reflect issues that have been the center of contention between Native Americans and the federal government for centuries: Native American religious freedom and tribal sovereignty. The lawsuit is part of a growing nationwide movement for tribal self-determination that grew in visibility during the Dakota Access Pipeline protests on the Standing Rock Indian Reservation.

Perception vs. Predator

When Bearshield’s ancestors lived in their traditional homelands before the first Europeans arrived, there were between 50,000 and 100,000 grizzly bears in the western half of North America. They lived in habitats stretching from Alaska to Mexico and American explorers and pioneers saw the grizzly bear as a vicious predator that stood in the way of westward expansion.  

A century of American settlement and development in the West destroyed much of the grizzly’s habitat, and campaigns initiated by federal and state governments to eradicate the grizzly nearly drove the animal to extinction. By the mid-1970s, the National Park Service counted 136 bears left in Yellowstone National Park, and approximately 800 others scattered in isolated populations across the West.

But during this time, public consciousness was shifting. The perils of industrialization had given way to an environmental movement that included protecting critical and endangered animals. In 1973, President Nixon signed into law the Endangered Species Act (ESA) to protect animals on the brink of extinction.  

Animals, then, received two designations: “endangered” or “threatened.”  Endangered meant that the species was in danger of extinction in all or a “significant portion” of its habitat, while threatened meant that a species was likely to become endangered “within the foreseeable future.”

The grizzly bear in the GYE and other areas across the West were placed under the “threatened” designation.

When the FWS has deemed a recovery plan successful—as it has with the GYE grizzly—the species in question is removed from the list of endangered or threatened species, or delisted. Each year, the FWS delists several species. In 2017, five species were delisted including the gray wolf and the GYE grizzly bear. But the battle to delist the grizzly happened long before that.

The FWS first proposed delisting the GYE grizzly in 2005 under the Bush administration. The bear was formally delisted in 2007, yet three lawsuits were immediately filed by environmental groups contesting the action. In 2009, the three cases ended up in the Ninth Circuit Court of Appeals. Two years later, the court ruled unanimously in favor of keeping the grizzly bear on the endangered species list.

That made some in Wyoming unhappy.  

In May 2014, Wyoming Governor Matt Mead wrote a letter to encourage Interior Secretary Sally Jewell to delist the grizzly bear. Mead said the grizzly’s recovery was “a conservation success story” in that letter posted by Environmental and Energy News.  “I had expected to see a delisting decision in 2014,” Mead wrote. “There is no reason to wait. I encourage the Fish and Wildlife Service to work with Wyoming Game and Fish to develop and publish a proposed delisting rule expediently.”

 

“That is what the grizzly bear represents. To us, the grizzly bear is the physical manifestation of the spirit of our Mother, the Earth. There is nothing more personal than that.”

– Dr. David Bearbow Bearshield

 

After several years of review and continued pressure from Mead and others, a final rule that removed the grizzly bear from the endangered species list went into effect in the summer of 2017.  

Three Western states that the Yellowstone grizzlies call home would decide the bears’ fate. The feds handed management of the bear to Wyoming, Montana and Idaho and each state drafted its own management plan. Officials with the Montana Fish, Wildlife and Parks agency decided not to hold a hunt at all this year due to the pending litigation. The Idaho Fish and Game Commission, meanwhile, approved a limited hunt of one male grizzly bear.

Wyoming’s plan varies from its neighbors. In May, Wyoming Game and Fish voted unanimously to approve hunting of up to 22 grizzlies. 

Inside a special monitoring zone near Grand Teton and Yellowstone national parks, where biologists have tracked the bear’s recovery, up to 10 males and one female could be hunted between September 15 and November 15. Only one hunter is allowed in this zone at a time and once a female is killed, the hunting in this zone ends. 

In a larger area outside the monitoring zone, the hunting of up to 12 bears—male or female—begins September 1. Hunting females with young cubs is prohibited in both zones. 

For wildlife advocates, killing a female is a key concern because bears produce slowly. A female does not begin reproducing until at least age five and they see protecting sows as key to the grizzlies recovery.

Hunters can apply for tags until July 16, and a computer will randomly choose recipients. Seventeen of the tags will go to Wyoming residents, which are priced at $600. Out-of-state hunters will pay $6,000 for the remaining five tags.

Environmental and animal rights groups across the country, like the Sierra Club and the Humane Society, were quick to condemn the hunt. Bonnie Rice, a spokeswoman for the Sierra Club, said the hunt “will set back 40 years of grizzly recovery efforts.” She said it has taken the bears 40 years to grow from a population of 136 to around 700 in the GYE.

Unsurprisingly, Jacksonites were also vocal about the delisting and hunt. Ann Smith has spent the last 20 years photographing local grizzly bears. After the delisting, she placed a “Grizzly Lives Matter” on the back of her antique truck. For Smith, the grizzly is a majestic animal and a symbol of everything that is wild in Wyoming. She can often be seen at trailheads in the region and on Jackson’s Town Square handing out brochures to educate people about grizzly bears and encourage they protest the delisting. She has raised more than $82,000 to fund the lawsuit filed by Earthjustice against the Department of the Interior and FWS. That lawsuit argues that the FWS decision to delist the grizzly was premature. The suit disputes some of the scientific findings used by the FWS. They claim that grizzly mortality has actually increased in recent years due to changes in food sources and more conflicts with people.

Smith plans to apply for one of the grizzly hunting tags as a symbolic protest. Rather than use the tag to kill a bear, she will spend the day photographing grizzlies. That will save the life of at least one bear for 10 days, she said.

Despite public outcry, FWS officials stand by their decision to remove the bruin from the endangered species list. The agency said the grizzly has made a full recovery in the Greater Yellowstone Ecosystem.

 

Bonnie Rice, a spokeswoman for the Sierra Club, said the hunt “will set back 40 years of grizzly recovery efforts.” She said it has taken the bears 40 years to grow from a population of 136 to around 700 in the GYE. (Jim Peaco/NPS)

 

Jennifer Strickland, a spokesperson for the FWS, told Planet Jackson Hole that the grizzly has maintained a stable population size of around 700 since 2002 and that there is a healthy distribution of females and young throughout the GYE.  She added that the size and quality of the bear’s habitat have improved across the region.

Grizzlies have doubled their range since the mid-1970s, Strickland said, and the bears now occupy more than 22,500 square miles, an area larger than the states of New Hampshire, Massachusetts and Connecticut combined. Strickland said the FWS based its decision on peer-reviewed science from education and research institutions, individual experts and state and federal government agencies. The successful recovery of the bruin “is a wildlife conservation achievement we are proud to celebrate,” Strickland said. It was a cooperative effort between local, state and federal agencies.

Among those state agencies is Wyoming Game and Fish. Its Communications Director, Renny MacKay, told PJH that while the grizzly hunt is the most controversial aspect of Wyoming’s plan, a “large majority of people of Wyoming who offered feedback [to the hunting proposal] support grizzly bear hunting.”   

Of the 407 public comments submitted by Wyomingites, more than half (243) supported the hunt. But some public meetings displayed the public’s even division. Nate Hegyi of Yellowstone Public Radio attended one of Game and Fish’s Jackson meetings in November 2017 and reported public opinion was divided. Planet Jackson Hole also reported on May 23 that ahead of Game and Fish’s vote on the hunt, group petitions of opposition poured in from Native American tribes, 100 wildlife photographers and 70 scientists. The public comments from across the nation largely decried the proposed hunt: 2,341 were in opposition and 995 supported it.

MacKay said hunting is a key component to the management of “all the large predators in Wyoming” and the state can “maintain a recovered population and offer hunting.” But he was careful to point out that hunting is not the only aspect of Wyoming’s plan. To ensure a “healthy grizzly bear population on the landscape,” Wyoming’s plan will increase efforts in “monitoring, research, habitat, conflict management, outreach and education, and law enforcement.”  Game and Fish encourages responsible, “ethical” hunting through hunter education programs and enforcement of state regulations that are meant to preserve animal populations, MacKay said.

Many hunting advocacy groups in the region support the trophy hunt as a management tool for a grizzly population that they say has increasingly come into deadly conflict with humans. Edwin Johnson, a life member of Safari Club International, has worked as a hunting outfitter for more than 30 years and said the growing GYE grizzly population is a “public safety issue.”  

Johnson said the bears no longer fear humans, and that “grizzlies have frequently been mauling and killing people in the area.” In fact, Johnson witnessed two of his clients get mauled by bears in 1996 and 2007.  

“Hunting instills respect for the human scent in wild animals including the wolf and the grizzly,” he said.

A 2018 report by Game and Fish shows that the number of encounters between grizzly bears and hunters was higher in 2017 than the previous year. The agency recorded 13 incidents and four human injuries. In 2016, there were eight recorded incidents and four human injuries. These numbers, Game and Fish said, are not out of the normal range for the past decades.

Studies have followed the effects of hunting on another recently delisted animal, the gray wolf. A study published by Washington State University in 2014 found that an increase in wolf killings actually led to an increase in the number of livestock killed by wolves the following year.  The study examined the number of wolves killed versus livestock killed over nearly two decades in Wyoming, Montana, and Idaho. For each wolf killed, the number of sheep killed by wolves the next year increased by 4 percent, and the number of cattle killed went up 5 to 6 percent.

Recovery and Legality

Environmental groups involved in the lawsuits disagree with the scientific conclusions drawn by FWS. They argue that the grizzly bear in the Greater Yellowstone Ecosystem has not sufficiently recovered and must remain on the endangered species list.

Andrea Santarsiere, a senior attorney for the Center for Biological Diversity, one of the plaintiffs, had a strong desire to work with wildlife as a young adult. Her passion led her to law school. “Law is where you can make meaningful changes,” Santarsiere said. “It gives a voice to those who don’t have their own.”  

She focused her attempts on advocating for large carnivores, the grizzly bear in particular.

Santarsiere said the suit contends that the science behind the FWS’s delisting of the grizzly is inadequate. The FWS, she said, ignored the fact that two important food sources for the grizzly, the whitebark pine and cutthroat trout, are both in decline across the region. As a result, the grizzly has increasingly been preying on elk and livestock. This has led to more conflicts between bears, elk hunters and ranchers. Mortality rates for grizzlies in 2015 were particularly high due to interactions between bears and humans, Santarsiere said. An increasing number of bears were killed by hunters in self-defense or wildlife officials as part of management actions.

The lawsuit claims that grizzlies have only recovered in less than 5 percent of their former habitat. There are currently five isolated populations of grizzly bears in the Northern Rockies and Northern Cascades including the GYE grizzly. The other four populations remain protected as endangered species.

Santarsiere said the FWS cannot delist a distinct species without considering how that delisting could affect other segments of the population. This precedent was set during the legal battles over the delisting of the Great Lakes gray wolf. In August 2017, a panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled that FWS must consider how the delisting of one distinct population could affect wolves in other areas.

Another lawsuit was filed by lone plaintiff and part-time Wilsonite Aland. He was involved in the original lawsuits against the FWS’s attempt to delist the grizzly in 2007. His motives, he said, are rooted in compassion.

Aland has been an animal lover for as long as he can remember. When he was five, his father took him to the circus and Aland was so upset watching animal trainers whip tigers and lions that he begged his father to take him home.

America does not properly care for wildlife, Aland said. He is particularly opposed to trophy hunting, which he sees as “shooting animals for no other reason than to stuff it and put it in your den.”

Aland’s specialty is tax law, so his lawsuit focuses more on legal technicalities in the delisting process than on environmental science. The lawsuit he filed in September 2017 covers 75 pages of complex arguments. The suit claims that the FWS failed to follow proper administrative procedures in the delisting process, and that the public comment process was flawed and riddled with misinformation.

Freedom to Worship

 

Dr. David Bearbow Bearshield poses in traditional regalia near a grizzly. Despite the great diversity in Native American religions and cultures, Bearshield said that the sacred status of the grizzly bear is universal to all the tribes involved in GOAL.

 

For Native Americans, however, the fight for the grizzly bear is more than an issue of environmental science or legal technicalities. The grizzly is at the core of their belief system and culture.

Bear Butte, a mountain north of Sturgis, South Dakota, is the center of the universe for Bearshield and his people. The Cheyenne believe that the mountain takes on the form of a female grizzly and that a cave in the mountain symbolizes the bear’s womb, Bearshield said. The cave, or womb, is protected by the spirit of the grizzly and is an especially holy site for the Cheyenne. “In that cave our Great Prophet, Sweet Medicine, communed with the Creator and received the Holy Covenant of the Tsistsistas, the Four Sacred Arrows,” Bearshield said.  

The prophet Sweet Medicine received other blessings in the cave, and the blessings formed the basis for Cheyenne identity. The Cheyenne also believe the grizzly created another sacred site, Bear’s Lodge (Devil’s Tower), where Sweet Medicine made his final prophecies.  

In the case of Crow Tribe et al vs. Zinke, the litigants argue that the bear’s delisting will be devastating for Native American nations that revere it as a central figure in their cultural identity. Any decision regarding the management of the grizzly bear has a direct impact on the ability of Native Americans to practice their traditional religious beliefs freely, Bearshield said.

Despite the great diversity in Native American religions and cultures, Bearshield said that the sacred status of the grizzly bear is universal to all the tribes involved in GOAL.  

“The grizzly is considered to be an ancestor, a grandparent, a teacher of healing and curing,” Bearshield said. “The bear plays a central role in creation narratives and traditional ceremonies for many American Indian nations.”

Some nations, like the Zuni, worship the grizzly as a deity. “If you kill a deity for recreation, how does that not infringe upon your religious rights and freedoms?” Bearshield said. “All people of faith should take note. If the government and the states can do this to our religions, yours could be next.”

The U.S. government has indeed violated the religious rights of Native Americans for centuries. The right to worship freely under the First Amendment did not extend to Native Americans until the 1970s. During the 19th and early 20th centuries, the federal government suppressed Native American religions as part of a broader effort to forcibly assimilate Native Americans into white, Christian, American culture. “Kill the Indian, save the man,” a phrase coined in 1892 by Captain Richard Pratt, the founder of the Carlisle Indian School, was a popular slogan at the time.  

The federal Indian Commissioner in 1902, W.A. Jones, described Native religion as “immoral” and “degrading” in a letter he sent out to agents on Indian reservations. Christian missionaries were given free reign to proselytize on reservations. Meanwhile, traditional religious ceremonies like the Sun Dance were outlawed, and the use of sacred objects like peyote were banned when the cactus was declared a controlled substance. The federal government also used force to crack down on Native religions.

The Ghost Dance movement that was started by the Sioux tribe on the Pine Ridge Reservation was ruthlessly put down when federal troops massacred men, women, and children at Wounded Knee in 1890.

 

“The grizzly is considered to be an ancestor, a grandparent, a teacher of healing and curing. The bear plays a central role in creation narratives and traditional ceremonies for many American Indian nations.”

– Dr. David Bearbow Bearshield

 

 

By the 1970s, Native American demands for self-determination intensified into a nationwide movement. A resurgence of traditional culture accompanied the growing Native civil rights movement, and the federal government began to change their stance toward the federally recognized tribes. In 1978, the American Indian Religious Freedom Act was passed into law by the Carter Administration.  The law stated, “it shall be the policy of the United States to protect and preserve for American Indians their inherent right to believe, express, and exercise the traditional religions of the American Indians.” The law protected access to sacred sites, the use and possession of sacred objects, and the ability to practice traditional ceremonies, including those centered on animals like the grizzly bear.

Crow Tribe et al vs. Zinke says the delisting of the grizzly bear violates the American Indian Religious Freedom Act. The language in the lawsuit recognizes that grizzlies “are of deep cultural and religious importance to all of the Plaintiffs.”  The lawsuit states that in its decision to delist the grizzly bear and relinquish management to the states, the federal government “expressly refused to consider the religious beliefs of the Plaintiffs.” The lawsuit argues that “the practice of [Native American] religious faith depends on the continued health…and the regrowth of the GYE grizzly bear population throughout the entirety of its traditional and historic habitat range, which includes the Plaintiffs’ culturally and religiously significant homelands.”

Tribal Sovereignty

“The grizzly bear issue is, and always has been, a Trojan horse to undermine tribal sovereignty,” Bearshield said. Once the federal protection of the grizzly is lifted, states will find it easier to impose their will over tribes in the region, he said.  “The second a tribe adopts a plan that is predominantly state-authored, it sets a negative precedent for myriad issues that may arise in the future,” he said.

The federal government signed a series of treaties with tribes who lived around Yellowstone at Fort Laramie in the 1850s, Bearshield added. The treaties recognize the Yellowstone region as the traditional homeland for 16 federally recognized tribes known as the “Associated Tribes of Yellowstone.”  These lands contain many sacred sites for the tribes. Bearshield and other tribal leaders fear that the delisting will allow states to open tribal lands and sacred sites to mining and other forms of economic exploitation.

Crow et al vs. Zinke argues that tribal sovereignty was further undermined because Native American tribes were not included in the federal delisting process for the grizzly. According to the lawsuit, the Clinton administration passed a series of executive orders that established procedures for federal agencies to “engage in direct, meaningful government-to-government consultation” when an agency’s policies conflicted with Native American interests.  The executive orders decreed that federal agencies must be “sensitive to Indian cultures, religions, and spirituality, which often involve animals and specific geographic places.” All agencies were given orders to respect the sovereignty of each tribe. The Fish and Wildlife Service was compelled to implement an “extensive tribal policy” that included the need for consultation with the tribes on “activities…that may affect endangered species.”

But the plaintiffs in Crow et al vs. Zinke say FWS did not adequately consult with Native American tribes during the delisting process. One of the plaintiffs is the Northern Arapaho Elders Society (NEAS), the traditional governing body of the Northern Arapaho Tribe on the Wind River Reservation.  An affidavit filed by NEAS leaders Nelson White, Sr., and Crawford White, Sr., provides a specific example of how the FWS failed to properly consult Native Americans in the delisting process.

The NEAS assert in the affidavit that the FWS refused to recognize the Northern Arapaho as a distinct tribe. They simply referred to the Northern Arapaho and the Eastern Shoshone as the “Wind River Tribe.” When the FWS formed a committee to begin the delisting process, they invited numerous federal, state, and local agencies in Wyoming to participate. The only Native American representative present was Eastern Shoshone Game Warden Ben Snyder. The Northern Arapaho leaders affirmed in the affidavit that, once again, they were a legally separate tribe from the Eastern Shoshone and that Snyder did not represent their interests.  

 

The successful recovery of the bruin “is a wildlife conservation achievement we are proud to celebrate.” 

– Jennifer Strickland, U.S. Fish and Wildlife Service

 

In July 2015, the FWS held a meeting with the Northern Arapaho Business Council, the elected governing body of the tribe, but did not include Elders Society in the discussion. The only other attempt the FWS made to meet with the Northern Arapaho was to invite an intern from the Tribal Historic Preservation Office to an FWS presentation in South Dakota. That intern did not have authority from the tribe to speak at the meeting.

The Northern Arapaho Elders Society stated in their affidavit that the federal government failed to follow the administrative rules laid down by the Clinton administration, and did not engage in any meaningful dialogue. “We, the leadership of the Northern Arapaho,” the affidavit states, “have not been invited to, nor engaged in, any meaningful consultation with the USFWS on [the grizzly bear delisting], in common with tribal nations from Montana to Arizona.”  

A representative from the FWS told Planet Jackson Hole that FWS is unable to comment on pending litigation.

An Alternative Plan

Representatives from dozens of tribes gathered in the small community of Brocket, Alberta, Canada, on September 30, 2016, on lands belonging to the Piikani Nation.  The tribal leaders were there to draft an important treaty called “The Grizzly Bear: A Treaty of Cooperation, Cultural Revitalization, and Restoration.” GOAL, represented by Bearshield, is a signatory to the treaty.

The treaty recognizes the central role of the grizzly bear in Native American culture: “The Grizzly has been our ancestor, our relative. The grizzly is part of us and we are part of the grizzly culturally, spiritually, and ceremonially.”  The treaty commits each tribe to protect and preserve the grizzly bear. But the most revolutionary part of the treaty is its rejection of state, provincial or federal plans to manage the grizzly, claiming that “all are infringements of our sovereignty.”  Instead, the signatories want to see the management of the grizzly bear handed over to the tribal nations.

The treaty also calls for the establishment of “linkage zones” to reunite the remaining, isolated grizzly populations in North America. If the grizzly population needs to be managed in any way, the removal of a bear “will be undertaken with ceremony” and the parts will be handed over to spiritual leaders for traditional healing purposes.  Seasonal closures would be established by the treaty to protect the bear during vulnerable times like food gathering, reproduction and rearing of the young. Each tribe could establish an ecotourism industry around the protected bears on tribal lands, bringing much-needed revenue and jobs to reservations, the treaty said.

Grizzly bear management, then, would not be based on the FWS’s “best available science,” but on traditional cultural concepts of coexisting with wildlife. The treaty states that the ancestors of contemporary Native Americans “were conservationists before the term existed in Western lexicon.”  

“We, collectively, recognize that our ancestors practiced the ‘best available science’ in the stewardship of the land,” the treaty continues, “as they lived in balance with our Mother Earth when the biomass was at its height.”  

The treaty commits to working with any federal agency, NGO or other organization willing to cooperate with “the intent of this treaty.”

“Over two hundred nations have now signed the treaty, making it the most-signed tribal treaty in history,” Bearshield said.

In a letter opposing Game and Fish’s decision to allow a hunt of the grizzly, Bearshield drew the battle line. With the hunt, Bearshield wrote that Wyoming “will be perceived as a bastion of regressive 19th-century attitudes that have no place in the 21st century.”

A hearing date for the six lawsuits has been set for August 30. The suits will be heard before Judge Dana Christensen of the U.S. District Court in Missoula, Montana.


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