The Washington Post editorial board says opponents and supporters of the Keystone XL pipeline are all exaggerating:

Despite what you might have heard, the pipeline wouldn’t kill the planet, nor would it supercharge the economy. You don’t have to take our word for either assertion: The State Department has said so; nonpartisan energy experts have said so; The Post’s Fact Checker has said so. Keystone XL should have been treated like a routine infrastructure project from the beginning of the permitting process — six years ago. Instead, the issue has been blown far out of proportion ["Return the Keystone XL Issue to Reality," Washington Post, 2015.01.11].

I agree with WaPo's dismissal of both the climate-change and economic arguments, but they oversimplify the problem. I've never beat the drum on the climate-change impact of the pipeline, because (a) I agree that blocking this single pipeline won't stop oil companies from mining the Canadian tar sands, (b) I know that here in South Dakota, concern about climate change won't get me any traction in a policy debate, and (c) there's a whole tub of other reasons to oppose the pipeline.

The WaPo editorial mentions the argument that all the Keystone XL oil will go to China and elsewhere. They dismiss that argument, saying the oil goes to U.S. Gulf refineries and that at least half of the oil currently refined at the Gulf stays in the U.S. WaPo seems impervious to changing economic facts, like decreasing U.S. demand and the business case enunciated by TransCanada itself, that make clear that this additional tar sands oil is destined for overseas consumption and will not affect U.S. energy independence one whit.

The WaPo editorial entirely ignores the other valid concerns Americans along the pipeline route have raised. Landowners on the Great Plains are being forced through eminent domain to bear the costs of disruption to their agricultural operations and future land-use plans. We are being forced to accept avoidable risk to the vital Ogallala Aquifer. We are being forced to facilitate the ongoing addiction to every dirtier fossil fuels. And we are being sold this pipeline on a steady series of Big Oil exaggerations and lies.

Sure, Keystone XL won't single-handedly destroy the planet. But it does other harm through eminent domain and unnecessary environmental risk, and it fails to deliver the advantages its backers have promises. When we're having a policy debate, it's not enough to prove that one harm won't happen. You have to prove benefits will happen and that other harms will not outweigh. Keystone XL fails that test.

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While Corinna Robinson talked sense about the Keystone XL pipeline (risk to water supplies, oil shipped to China, jobs nowhere near as numerous or impactful as TransCanada pretends), I hear Rep. Kristi Noem is trying to spread the flow by arguing that TransCanada's tar sands pipeline will free up more rail capacity for farm products.

Alas, farmers are buying this baloney:

Farmers and ranchers have a stake in the Keystone XL project, said Randy Miiller, who farms near Mount Vernon.

Miiller said trucks carrying oil from North Dakota are damaging roads in South Dakota. Meanwhile, the oil companies have been driving up the cost of rail for farmers. There is less rail capacity for farm products, and it's more expensive.

"Without the XL pipeline, to me it's a slow cancer to all the farmers," Miiller said. "It's going to kill us" [Jonathan Ellis, "Noem, Robinson Disagree on Keystone XL Pipeline," that Sioux Falls paper, 2014.08.19].

Pssst, Randy! Did you notice that the first Keystone pipeline through East River didn't do diddly to free up rail cars for your corn? That pipeline isn't moving any Bakken crude. 92% of the oil in Keystone XL will be Canadian oil. Even if Bakken producers can get any oil into Keystone XL, they might still prefer to use your rail cars, since they get access to more refineries.

Here's a thought, farmers and Republican Congress critters: if you really think the rail shortage is critical, why not entertain some other, less risky solutions? Instead of eminent domaining West River landowners to transfer their property rights to a private foreign corporation, why not impose on the railroad corporations' rights? Why not require that, at the peak of the harvest, the railroads give priority to American agricultural products?

If we're going to use eminent domain, shouldn't we use it for American interests? And what meets American interests more: shipping mostly Canadian oil, or shipping American corn?

36 comments

Remember Rebecca Rodriguez? She was one of Harding County rancher Bret Clanton's interesting house guests last year. Rodriguez was walking TransCanada's Keystone XL pipeline route from Port Arthur, Texas, to Hardisty, Alberta, for her documentary project, This Land Was Your Land. She trod through Clanton's land in early November; with winter setting in, she got to Val Marie, Saskatchewan, near the U.S.–Canada border and called it good. (There is great merit to knowing when to say when... especially when walking northwest toward Alberta in December.)

Rodriguez writes back and says South Dakota holds a special place in her heart. She collected lots of great photos and great stories. She offers one story based on her encounter with John Harter, a Colome rancher who fought TransCanada in court and lost, as South Dakota's judicial system uphold the outrageous notion that a private foreign company can use eminent domain to usurp South Dakotans' property rights. Rodriguez also sends a video of Harter himself telling his story. I happily yield the floor to her literary account of one part of her journey through South Dakota.

The CIA, the Black Snake, and the Last Man Standing

Rebecca Jane Rodriguez

They’re playing old country music so I stay, all night until closing. I awaken the next morning in the city park in the town of Witten, South Dakota. As light breaks through the tree limbs into my tent, my throat is dry, my head is heavy, a reminder of the night before—one too many whiskeys at the bar across the street called “Cowboy-Up.” My phone rattles. It’s Johh Harter, a rancher from nearby Colome. We tried to meet the day before in Winner but we couldn’t make it happen. Harter is the only man in the state to challenge TransCanada’s claim to his land. The Keystone XL pipeline is set to run across his pastureland, the same homestead that has been in his family for decades, and he's not taking it lying down. He tells me he has time to talk.

John arrives a few minutes later in a black pick-up truck. He’s a smaller guy but tough with a slim muscular build, eyes like frost on bluestem behind square glasses. He invites me to stay with him and his family for a few days on his ranch just outside of Winner. The South Dakota plains are serene: rolling hills, flat land; this is sand country, all under a blue sky swollen with clouds—a place that I’ve quickly become absorbed in. On the ride home he gives me the details of his six-year fight to protect this little patch of heaven from a pipeline giant.

During a 2008 meeting for landowners at the Holiday Inn Express, TransCanada representatives set up tables, laid out maps, and there he found out the pipeline was set to cross his land. According to TransCanada, this pipeline was going to fix all the community’s problems, money for the schools, local jobs….

All he had to do had to do is sign on the dotted line.

The other farmers and ranchers were eager to get on board, but John hesitated because he’s heard this story before.

"I guess when I was at this meeting I had this thought of caution while I was there listening and asking questions. One of the things that embedded in my mind before I even went to this meeting was what my Dad told me when I told him about the pipeline. My dad told me not to trust them. He said, ‘Them oil people all lie.’”

This was not the Harters’ first brush with the oil industry. John recalls a childhood memory when his family was paid a visit by some oilmen.

“Years ago there was these people that come up, it was when I was probably younger than ten years old. I remember a van coming in the yard and these were people coming in wanting to drill test wells on the property and my Dad wouldn’t let them do that.”

John tells me his Dad was no fool and he wasn't buying their bull either. So he looked into it further and learned another B-word: Bitumen.

John’s research lead him to Dakota Rural Action, a local grass root organizer. He went to some informational meetings where he was put in touch with other landowners, who had direct experience with the Keystone I, a precursory pipeline to the XL further to the east carrying the same product. They weren’t talking like the pipeline peddlers in the area. From the get-go pipeline reps downplayed the contents, telling John it was just crude petroleum. But it wasn’t crude, not quite.

“[Trans Canada] told us that it was crude oil and then we learned about what the tar sands actually is. It’s bitumen, a mud peanut butter-consistency type of a product that they have to dilute with a lot of other chemicals that if it got into the water table it would be poisonous and virtually unable to clean up.”

Harter's main problem with the whole thing was where the engineers wanted a put the pipeline.

John's pasture is ideal for cows but a dubious place for a pipeline. The thought of a 36-inch, high-pressure pipeline, less than a ½ inch thick, at 1600+ psi,100 feet from where he waters his cows, understandably made him nervous. More alarming, the effects a bitumen spill would have on the land, so close to the water table, would mean the end of his cattle operation. A spill wouldn’t just be bad for his cattle outfit, but it could wreak havoc on the drinking water for his whole community. For John, it’s a matter of life and death.

“Safety probably was and still is the main point. Just a few miles north of my property is the start of the depth of the Ogallala high plains aquifer. [The pipeline] runs beneath that and the city of Colome’s water wells. You’re constantly hearing about oil spills that go on, so across my property, where the water table is right at or just below ground level, sometimes it is even above ground level, a spill would be devastating. To me that's intent to do the public harm and they’re doing it on purpose and… it's unlawful.”

He didn't want to sign, but felt he didn't have a choice. He tried to negotiate, but that didn't go well. Dakota Rural Action was able to hammer out a better easement with TransCanada. It included more money but not the safety concessions John wanted, like ¾-inch thick pipe on his pasture near the aquifer, an area not even considered “high consequence” to TransCanada’s engineers. Desperate for better protection, John even went so far as to contact the Natural Resource Conservation District, which determined that the property in question was indeed a wetland area, shifting it into a “high consequence” zone and worthy of thicker pipe.

That didn’t matter to TransCanada. They wanted his land for their pipeline, --done the cheapest way possible --and they weren't taking no for an answer. There would be no more concessions. They informed him if he wasn't going to give up his land willingly, they had the legal right to take it from him. That's when they started using the words, "eminent domain".

"I was reluctant to sign a survey easement with TransCanada but they were threatening eminent domain just to get the ability to go out and even survey across your property so, I did not have the ability, nor did any other property owners, of saying ‘No’ to these people."

A seventh degree black belt, one thing Harter doesn’t like to be is bullied, so he took his case to court. He lost…but the story doesn’t end there.

After the decision of condemnation came down, with a little support from other ranchers in the area, Harter looked for allies in an unlikely place.

“We don’t own the land, the land owns us.”

Faith Spotted Eagle, a grandmother and activist from the Yankton Sioux Reservation in South Dakota has been working with John Harter and other non-natives resurrected a partnership called the Cowboy Indian Alliance or the CIA. Back in the 1970’s the unlikely coupling began when the Lakota native community and Dakota ranchers joined forces under the CIA to halt uranium mining. The CIA has now been loosely reestablished by a new generation of farmers and ranchers, finding support with folks who are no strangers to the loss of land.

I talk to Faith at a “Draw the Line” event, organized by Spotted Eagle and local native groups as part of an international day of solidarity with Bill McKibben and others in the climate movement 350.org. Mixed in with tribal members from the nearby Rosebud and Pine Ridge Reservation are an assortment of folks; a middle aged couple from Valentine, Nebraska, a journalism student from Colorado and some new age types with sun hats and mom jeans. Harter and his wife Tracee round out the cast; representing the only landowners to stand defiant to TransCanada advances. Faith has found common ground with Harter and the other white ranchers who are feeling the effects of perpetual
encroachment by corporate interests.

"I think the most phenomenal thing is that we are aligned with the cowboys and the white ranchers. We would not be having this conversation with you. We wouldn’t be standing on the street with them if it hadn’t been for the KXL and what Harper is doing in Canada—and in a way—we have to thank Harper for uniting us because of the predator economics. I think that it affected our white neighbors in a way that has really shaken their sprits to realize how it felt when our land was taken and so we jokingly call them “the new Indians”.

We drive out to see the old family homestead. We totter down an uneven dirt path to see the pasture that the pipeline will dissect, a long line of tall cottonwood trees dot the way there. Faith and a group of Lakotas from the demonstration follow us caravan style to the site where the pipeline is planned. They offer to bless the land in question for protection in case the pipeline does goes through.

"It’s real hard to go out to their ranches where their land has been condemned." Faith says, “That is not only condemned land, it’s also treaty land, so it’s like it’s been taken twice."

No one lives here now, just an old trailer where John’s little brother used to live before he moved to town. Harter and his dad continue to run cattle there and lots of memories of the old days remain. I grew up here working on the ranch." Harter tells me, "The land is a part of me, it is history within me.” History is all Harter has right now as the future seems so inevitable. It is little consolation to him that his fate is a shared one.

The “Black Snake,” as the Lakotas have called it, is slithering its way up the spine of America; strangling all who stand in its way. It is just a matter of time before corporate interests come knocking at your door the way the oilmen did to the Harters. They will be polite at first, listen to your concerns; if you are firm they might even go away, but rest assured they will be back.

Here's Harter telling his story:

Last Man Standing from Rebecca Jane Rodriguez on Vimeo.

Thank you, Rebecca, for visiting South Dakota and telling our story.

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Senator Dan Lederman (R-16/Dakota Dunes) is hollering about outsiders taking away South Dakotans' and Nebraskans' property rights. No, he's not finally getting his property-rights ducks in a row and protesting TransCanada's use of eminent domain to seize land for its Keystone pipelines. Heck no—junketing Lederman loves putting Canadian oil profits over local land rights.

Senator Lederman is actually opposing a federal conservation plan, the Niobrara Confluence and Ponca Bluffs Conservation Area:

Our Federal Government is threatening to take 90,000 acres of privately held property in South Dakota and Nebraska under the Land Protection Plan (LPP) for the Niobrara Confluence and Ponca Bluffs Conservation Area. You only have until September 30, 2013 to voice your opinion about this threat to private property rights.

I encourage you to read about the Niobrara Confluence and Ponca Bluffs Conservation Area, http://www.parkplanning.nps.gov/projectHome.cfm?projectID=40350, which impacts private property owners in southeast South Dakota and northeast Nebraska. Viable agricultural land is threatened in this area. Taxable private property is threatened in this area [Senator Dan Lederman, "Proposed Federal Land Grab Threatens Private Property Rights," blog, 2013.09.15].

Senator Lederman must be reading a different Niobrara Confluence and Ponce Bluffs Draft Environmental Impact Statement and Land Protection plan from the one I'm reading. There is no threat to private property rights, viable agricultural land, or taxable private property. Here's what's actually happening:

The National Park Service and U.S. Fish and Wildlife Service are proposing three alternatives to acquire conservation easements on or outright purchase 5% to 15% of land in the project area along the Missouri River between Pickstown and Sioux City. (The proposed easement-purchase ratio would be 4 to 1.) The feds' preferred plan is 10%: 80,000 acres in the Niobrara Confluence upstream of the Gavins Point Dam, and 60,000 acres in Ponca Bluffs downstream of Gavins Point. The plan speaks unvaryingly of working with willing landowners. Because Senator Lederman apparently missed it, I'll write it big:

This plan is designed to work in partnership with willing landowners only.

[National Park Service and U.S. Fish and Wildlife Service, Draft EIS: Niobrara Confluence and Ponca Bluffs Conservation Areas, March 2013]

If that's not clear enough, check out this flow chart of the feds' acquisition process:

Land acquisition process for the proposed Niobrara Confluence and Ponca Bluffs Conservation Areas, Nebraska and South Dakota.

Land acquisition process for the proposed Niobrara Confluence and Ponca Bluffs Conservation Areas, Nebraska and South Dakota. DEIS NC/PBCA, March 2013, p. 168

See that little arrow and octagon to the left of "Offer to landowner acceptable"? "No" means no; "End" means end. The flow chart goes no further. Contrary to the false fears Senator Lederman stokes in his comment section, there's no threat to condemn the property. Nowhere does the plan force anyone to surrender property rights.

The government will pay landowners to maintain grasses, forbs, low shrubs, and trees on the conservation easements with these restrictions:

  • Haying, mowing, and seed harvesting for any reason will not occur before July 15 in any calendar year.
  • Grassland, wildlife habitat, or other natural features will not be altered by digging, plowing, disking, or otherwise destroying the vegetative cover, and no agricultural crop production can occur on the habitat areas delineated.
  • Draining, filling, and leveling of wetlands will be prohibited.
  • Altering and stabilizing the riverbank and shoreline will be prohibited.
  • Livestock confinement facilities such as feedlots will be prohibited [Draft EIS: NC/PBCA, March 2013].

The owners can still graze the land freely. They still pay taxes and control noxious weeds. Don't like those conditions? Don't sell. Uncle Sam will take its conservation business elsewhere.

This conservation plan protects species while boosting local tourism and economic activity. It never threatens to take landowners to court to eminent domain their land, unlike TransCanada, which strongarmed landowners all along its pipeline routes with the threat of using the American court system to take American land for private foreign profit.

Senator Lederman has been silent about the property rights of South Dakota and Nebraska landowners facing the very real threat to their property rights from Canadian tar sands pipelines. But he is making stuff up to rouse opposition to a sensible and voluntary federal conservation plan.

12 comments

The South Dakota Department of Labor sent officials to Aberdeen Friday to meet with the 260 workers laid off by the state-boosted and bankrupt Northern Beef Packers slaughterhouse. It didn't go well:

Northern Beef Packers still owes hundreds of workers back wages. Some of those former employees say they're behind on bills and need that money now.

But state officials say there's little they can do at this point. Still, they're trying to help those workers in any way they can.

..."When are you going to get your back wages? I cannot tell you; I do not know," South Dakota Department of Labor’s Bill Molseed said.

Officials say the state could take action if Northern Beef Packers hadn't already filed for bankruptcy protection. Since it has, the issue is now tied up in the courts [Erich Schaffhauser, "Beef Plant Workers Meet with Dept. of Labor," KELOLand.com, 2013.07.26].

Indeed, with 277 creditors lined up for their due, many of them with bigger money at stake and bigger lawyers ready to make their argument in bankruptcy court, stiffed workers struggling to make rent face a hard battle to get paid for the work they've done.

If those workers have any savings left, they could move to Sioux Falls and work at Costco. They could give South Dakota native and beef entrepreneur Keith DeHaan a call and invite him to bring his ambitions to Aberdeen, buy NBP, and put them all back to work. (Scottsbluff, Nebraska said no to a new slaughterhouse; Aberdeen, here's your chance!)

Or they could turn the Attorney General of the State of South Dakota and say, "Pierre created this mess; Pierre can help us out of it." So says Libertarian blogger Ken Santema:

...it is best for the State to provide emergency support for these families. This would not be a case of welfare or government intervention, it is a case of the State stepping in to help band-aid a situation it created. Apparently the State of South Dakota has a surplus of $24.2 million when the fiscal year ended last month. Part of that money could be used as short-term relief for these families until NBP is forced to pay its workers. If that means creating a special session of the legislature I would say that is OK. Right now what is important is to help these families, and determine later how to prevent such situation in the future [Ken Santema, "The State of South Dakota must help correct the situation it created at Northern Beef Packers," SoDakLiberty, 2013.07.29].

Here's another situation where we Democrats can find common cause with conservatives disillusioned with the South Dakota GOP and its failure of principles. The state made Northern Beef Packers possible with the EB-5 green-card-buying program and some loan legerdemain. NBP has harmed its workers and its community. The state should step in to rectify that harm. Let me enhance Santema's call for state action with a specific plan:

  1. Allocate whatever chunk of the budget surplus is necessary to pay all affected workers their back wages. We acted fast to help M. Michael Rounds and his well-heeled neighbors and golfing buddies who built big houses in a flood plain; we can act just as fast, without a special session, to help working people whose only error was going to work for a slaughterhouse with bad management and cash flow.
  2. Seize the Northern Beef Packers property by eminent domain. NBP screwed up; the property is sitting idle. The state should take the property, sell it, and replenish the funds used for worker aid with the proceeds. Perhaps better yet, the state should get back into business: nationalize NBP (or is it state-alize?), hire back all the workers, and run the plant the way we ran the State Cement Plant for eight decades.
  3. Invoke extraordinary rendition to bundle the NBP money handlers off to South Korea, where they can explain themselves to their investors and the Korean legal system.

The state bears a share of responsibility for the economic disaster that has befallen 260 Aberdeen workers. Instead of sending Department of Labor bureaucrats to hand out forms and say their hands are tied, it's time for Pierre to own its mistakes and help these workers.

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Part Cherokee (or Creek?) and honorary Comanche Johnny Depp may come to the rescue of his Lakota kemosabes on Pine Ridge to save Wounded Knee. Says the UK Daily Mail (via Indian County Today):

Such is Depp’s commitment to the Native American cause, he is planning to spend millions of his own money to return land, Wounded Knee, in South Dakota, to their ownership.

The site, the scene of an 1890 massacre, is up for sale for $3.9 million. Local Native Americans say they cannot afford to buy it. Depp is outraged.

‘It’s very sacred ground and many atrocities were committed against the Sioux there. And in the 1970s there was a stand-off between the Feds (Federal government) and the people who should own that land. This historical land is so important to the Sioux culture and all I want to do is buy it and give it back. Why doesn’t the government do that?’’

Is he really prepared to pay for the land?

‘I am doing my best to make that happen. It’s land they were pushed on to and then they were massacred there. It really saddens me’ [Martyn Palmer, "'The last few years have been a bit bumpy': Johnny Depp on life after Vanessa Paradis - and cheating death on his new movie," UK Daily Mail, 2013.07.06].

The 40-acre site is officially appraised at $7,000. Any additional value to white owner James Czywczynski accrues from a historic act of barbarism. Then again, the American Indian Movement scored some payback in 1973 when it destroyed Czywczynski's home and the trading post he ran during their armed occupation of Wounded Knee. Who owes whom what?

I hate to see any member of the conquering race profit further from Lakota blood, even if that profit is taken from another (87.5%) member of the conquering race. Perhaps a better outcome would be for taxpayers to give Czywczynski the assessed value of his land, plus compensation for his verifiable losses during the 1973 violence, then take the land by eminent domain for historic preservation. South Dakota conservatives don't mind using letting a private Canadian corporation use eminent domain against South Dakota landowners to export profits, so they shouldn't get bent out of shape over using eminent domain for the benefit of Native South Dakotans. Congress has authorized the use of eminent domain for historic preservation of battlefields and cemeteries; that authority should include preserving the site of one of the American military's great crimes.

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What's Matt McGovern doing after losing his bid to replace Kristie Fiegen on the Public Utilities Commission? Oh, the usual: trying to prevent big government from redistributing the wealth of South Dakota landowners to foreign moochers.

Wait a minute: isn't protecting property rights supposed to be the Republican Party's purview? You'd think, but as usual, when it comes to TransCanada and the Keystone XL pipeline, South Dakota conservatives are dead silent when it comes to protecting South Dakota landowners.

McGovern is representing Colome rancher John Harter in court. TransCanada plans to plow the Keystone XL pipeline into his pasture. They offered him a dollar a day for the privilege of hosting their risk. Harter said no. TransCanada took him to court to force him to give up his land. The South Dakota court sided with TransCanada, saying as another court did in 2008, that a private pipeline owned by a private foreign corporation hauling only that corporation's private clients' product qualifies as a "common carrier" and thus can seize land from South Dakotans under eminent domain.

Conservatives hate eminent domain. They ought to be going ape over this abuse of South Dakota property rights. They ought to be hanging these judges in effigy and starting recall petitions (can we do that to judges?). But because its Big Oil, the right-wing commentariat gives us crickets.

And John Harter waits for a Tripp County jury to decide how much TransCanada must pay him for scarring his land and putting his cattle, livelihood, and resale value and permanent risk. We can only hope that Harter's peers will recognize the great value of his land and the great sacrifice he is being forced to make by a greedy, arrogant corporation.

Harter speaks about his land (his land, dang it!) in this video from the Natural Resources Defense Council:

Blaise Emerson, Black Hills economic development honcho, tells that Sioux Falls paper he doesn't see any reason Keystone XL shouldn't go forward. Emerson and the state of South Dakota don't see John Harter. Matt McGovern does. We all should.

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Last month a Texas judge made the same error a South Dakota judge did in 2008, ruling that TransCanada, a Canadian corporation, can seize American property through eminent domain. Judge Bill Harris of Lamar County in Texas ruled that the Keystone XL pipeline is a "common carrier," even though this pipeline belongs entirely to TransCanada and isn't open to any supplier of oil or other substances in the United States. To add insult to error, Judge Harris iPhoned in his terse 15-word ruling, offering no explanation of whatever legal thinking motivated his decision to cede your right to private property to a foreign corporation.

Meanwhile, a little closer to home, TransCanada has submitted a second revised route for Keystone XL over the Ogallala Aquifer in Nebraska. Like the first reroute that Nebraska rejected earlier this year, the new bumps in the pipeline still grind through sensitive ecological areas and put our water at risk.

Just like coal, oil is on its way out. We're learning to do more with less; President Obama's fuel-efficiency policies will negate our need for more oil than Keystone XL would ever pump across our prairie. We should not tear up both American land rights and our land for a pipeline we don't need.

2 comments

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