#27080-a-DG
2015 S.D. 20

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA


                                    ****

MURRAY LINDBLOM and
GEORGINE LINDBLOM,                           Plaintiffs and Appellants,

      v.

SUN AVIATION, INC., a
South Dakota Corporation, JEFF
MUHLENKORT, individually, and
NICHOLAS P. HYBERTSON,                       Defendants and Appellees.


                                    ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE FIRST JUDICIAL CIRCUIT
                      CLAY COUNTY, SOUTH DAKOTA

                                    ****

                   THE HONORABLE STEVEN R. JENSEN
                               Judge

                                    ****

CATHY A. KNECHT
Sioux Falls, South Dakota                    Attorney for appellants.


STEVEN K. HUFF
BEAU C. BARRETT of
Johnson, Miner, Marlow, Woodward
  & Huff, Prof., LLC
Yankton, South Dakota                        Attorneys for appellees.


                                    ****
                                             CONSIDERED ON BRIEFS
                                             ON FEBRUARY 17, 2015
                                             OPINION FILED 04/08/15
#27080

GILBERTSON, Chief Justice

[¶1.]        Murray and Georgine Lindblom appeal the circuit court’s judgment

denying relief on their claim against Sun Aviation, Inc., Jeff Muhlenkort, and

Nicholas Hybertson (collectively, “the Defendants”) for negligently spraying

pesticide on the Lindbloms’ cornfield. The Lindbloms assert the circuit court should

have given deference to a South Dakota Department of Agriculture (the

Department) investigator’s determination that Muhlenkort violated a safety

statute. The Lindbloms further assert that the circuit court erred in concluding the

Lindbloms did not prove the Defendants committed negligence—as a matter of law

or otherwise. We affirm.

                           Facts and Procedural History

[¶2.]        In June 2011, Hybertson hired Muhlenkort to aerially apply herbicide

to a cornfield located near Wakonda in Clay County, South Dakota. On the evening

of June 24, 2011, Muhlenkort sprayed Hybertson’s field with “Roundup

WeatherMAX”—an herbicide that purportedly damages or kills any vegetation that

is not genetically modified to withstand the herbicide. The Lindbloms’ cornfield,

which was not modified to tolerate Roundup, was located to the north of Hybertson’s

field, across a 66-foot-wide, paved road flanked by ditches on both sides.

Muhlenkort, who has held federal and state licenses for aerial spraying of crops

since 1981, began loading the chemical at 7:45 p.m., took off for Hybertson’s field at

8:00 p.m., began spraying around 8:20 or 8:30 p.m., and arrived back at his airfield

at approximately 9:10 p.m. He testified that all available information indicated the

winds had slowed to less than ten miles per hour by 8:00 p.m., and he tested for


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drift prior to spraying by discharging and observing smoke. The labeling

requirements for Roundup prohibit application—by air or ground—in wind speeds

in excess of ten miles per hour.

[¶3.]        Brad Trudeau, the owner of Centerville Ag—another company that

sells and applies herbicides—witnessed Muhlenkort’s application of the herbicide.

Trudeau testified that he saw Muhlenkort flying about a quarter mile south of the

Lindbloms’ field, that the wind was blowing from the southeast at about 13 or 14

miles per hour, and that some of the herbicide drifted toward the Lindbloms’ field.

Several days after Muhlenkort applied the fertilizer to the Hybertson field, corn on

the southern end of the Lindbloms’ field appeared to begin dying. The Lindbloms

contacted Hybertson, who confirmed that Roundup was sprayed on his field on June

24. Hybertson then contacted the Department to report the Lindbloms’ concerns.

The Department dispatched Virgil Sinning—an agricultural inspector for the

Department for 27 years with an additional 16 years of experience in applying

agricultural chemicals prior to his work with the Department—to investigate.

[¶4.]        Sinning inspected the Lindbloms’ cornfield on July 6, taking samples

and photographs. He walked from the north end to the south end, taking one

sample at about one-third to one-half of the way into the field, another at about two-

thirds of the way into the field, and a number of samples of the rows on the south

end of the field. Sinning observed that the majority of the damage was located at

the southern end of the Lindbloms’ field, although he noted the first couple of rows

closest to Hybertson’s field were less damaged. Sinning theorized that the first

several rows were protected by tall grass growing in the ditch. The samples


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indicated the presence of glyphosate, the active ingredient in Roundup. Although

no evidence was introduced establishing the amount of the chemical required to

damage or kill unmodified corn, Sinning concluded the damage to the Lindbloms’

crop was caused by Roundup drifting from Muhlenkort’s aerial application of the

herbicide to Hybertson’s field. The Department also determined that Muhlenkort

sprayed in wind speeds ranging from eight to fourteen miles per hour. Based on

this data and Sinning’s report, the Department concluded Muhlenkort did not apply

the Roundup in accordance with its label requirements. The Department informed

Muhlenkort that it intended to pursue a civil penalty against him unless he agreed

to pay $385 in settlement. Muhlenkort paid the settlement and the Department did

not take any further action.

[¶5.]         The circuit court, however, heard other evidence favorable to the

Defendants. In reaching its conclusion that Muhlenkort’s conduct did not conform

to label requirements, the Department relied on wind speed data collected from

locations near Beresford and Yankton. 1 The Department initially determined that

wind speeds ranged from eight to fourteen miles per hour at the time Muhlenkort

applied the herbicide to Hybertson’s field. This data reflected conditions near

Beresford around 8:00 p.m. Beresford data for 9:00 p.m. indicated wind speeds of

six miles per hour with gusts up to eleven miles per hour. Data for the Yankton

area indicated wind speeds of approximately nine miles per hour between 8:15 and



1.      The circuit court found that there was no reliable wind data for the
        immediate area of the Hybertson and Lindblom fields, which are located
        between Beresford and Yankton.


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9:15 p.m. The National Data Center also reported wind speeds of nine miles per

hour around Yankton during this time, with no gusts after 7:00 p.m.

[¶6.]        The circuit court also heard evidence of other possible causes for the

damage to the Lindbloms’ corn. In the month before the damage manifested,

Centerville Ag applied “Verdict,” another herbicide, to the Lindbloms’ corn

approximately five days after it was planted. The warning label for Verdict

indicates it can cause delayed emergence or stunted growth in cool conditions or

where there is excessive moisture. Muhlenkort introduced aerial photographs

taken on July 2 showing areas of the Lindbloms’ cornfield that suffered damage due

to excessive moisture. Some photographs show standing water at the southern end

of the field. The Lindbloms also acknowledged their cornfield suffered damage from

the wet conditions.

[¶7.]        The Lindbloms also own a soybean field located immediately to the

east of their cornfield. No barrier separates the Lindbloms’ corn and soybean fields.

On June 30, prior to Sinning’s inspection, Centerville Ag applied Roundup—the

same herbicide that Muhlenkort sprayed on Hybertson’s field—to the Lindbloms’

soybean field using a ground sprayer. The circuit court heard evidence indicating

there were stronger winds active at this time than when Muhlenkort sprayed

Hybertson’s field.

[¶8.]        The Lindbloms brought a claim for damages against the Defendants

based on negligence and trespass theories. The action was tried to the circuit court,




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which ruled in favor of the Defendants. The Lindbloms appeal, raising two issues

on appeal 2:

               1.     Whether the circuit court was required to give deference to the
                      Department’s determination that Muhlenkort violated SDCL 38-
                      21-44(2).

               2.     Whether the evidence is sufficient to sustain the circuit court’s
                      determination that Muhlenkort did not commit negligence.

                                  Standard of Review

[¶9.]          “In a bench trial, the circuit court is the finder of fact and sole judge of

credibility.” Osman v. Karlen & Assocs., 2008 S.D. 16, ¶ 30, 746 N.W.2d 437, 445.

               We will not set aside a circuit court’s findings of fact unless they
               are clearly erroneous. A circuit court’s finding is clearly
               erroneous if, after reviewing the entire evidence, we are left with
               the definite and firm conviction that a mistake has been made.
               All conflicts in the evidence must be resolved in favor of the
               circuit court’s determinations. The credibility of the witnesses,
               the weight to be accorded their testimony, and the weight of the
               evidence must be determined by the circuit court and we give
               due regard to the circuit court’s opportunity to observe the
               witnesses and the evidence. . . . On review the successful party
               is entitled to the benefit of his version of the evidence and of all
               favorable inferences fairly deducible therefrom.



2.      The Lindbloms’ complaint also alleged trespass against the Defendants.
        However, the circuit court noted the Lindbloms did not argue their trespass
        theory at trial or in their brief to that court. “Ordinarily an issue not raised
        before the trial court will not be reviewed at the appellate level.” Ronan v.
        Sanford Health, 2012 S.D. 6, ¶ 14, 809 N.W.2d 834, 837 (quoting State v.
        Gard, 2007 S.D. 117, ¶ 15, 742 N.W.2d 257, 261) (internal quotation marks
        omitted). Likewise, the Lindbloms have mentioned the word “trespass” only
        in passing in their briefs to this Court, and then only as an appendage to
        their negligence claim. Functionally, the Lindbloms have not briefed the
        issue of trespass to this Court, as is required by SDCL 15-26A-60. Therefore,
        we consider the issue waived. See Veith v. O’Brien, 2007 S.D. 88, ¶ 50, 739
        N.W.2d 15, 29 (holding issue waived on appeal “for failure to cite authority in
        violation of SDCL 15-26A-60(6)”).


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#27080

State v. Fifteen Impounded Cats, 2010 S.D. 50, ¶ 26, 785 N.W.2d 272, 281-82

(quoting In re Estate of Pringle, 2008 S.D. 38, ¶ 18, 751 N.W.2d 277, 284) (internal

quotation marks omitted).

                              Analysis and Decision

[¶10.]       1.     Whether the circuit court was required to give deference to the
                    Department’s determination that Muhlenkort violated SDCL 38-
                    21-44(2).

[¶11.]       The Lindbloms argue the circuit court should have “give[n] deference

to the Department of Agriculture’s investigation and determination of a violation of

SDCL 38-21-44(2).” The Lindbloms claim the Department found that “there was no

doubt that drift had taken place” and that “the damage to Appellants’ field came

from the Round-up sprayed on the Hybertson field because the damage was across

the south end.” It should be noted at the outset, however, that the first “finding”

referenced by the Lindbloms is a statement appearing only in Sinning’s trial

testimony. The second “finding” is actually the circuit court’s summary of Sinning’s

testimony. The only statement that we see in the record regarding a finding of the

Department itself is its statement in a letter to the Lindbloms that “Jeff

Muhlenkort was found in violation and [sic] SDCL 38-21-44(2), applying a pesticide

inconsistent with the label. The matter was settled with the department by a

payment of $385.00, in lieu of a civil penalty.” The settlement agreement entered

into by Muhlenkort and the Department reflects this as well.

[¶12.]       In support of their claim, however, the Lindbloms cite a number of

decisions from other jurisdictions for a proposition embodied in SDCL 1-26-36:

             The court shall give great weight to the findings made and
             inferences drawn by an agency on questions of fact. The court
             may affirm the decision of the agency or remand the case for
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#27080

             further proceedings. The court may reverse or modify the
             decision if substantial rights of the appellant have been
             prejudiced . . . .

This statute clearly contemplates the treatment of agency findings after an appeal

has been made from an agency proceeding or adjudication in accordance with SDCL

chapter 1-26. However, no administrative hearing or adjudication ever occurred in

this matter. Rather, the Department accepted Muhlenkort’s payment “in complete

settlement of the potential cause of action against Muhlenkort.” (Emphasis added.)

In essence, then, the Lindbloms ask us to adopt a definition of the word “decision”

that includes a choice made or conclusion reached by an administrative agency,

regardless of whether or not an adversely affected party has had an opportunity to

be heard and contest the agency’s choice or conclusion. We do not agree with such a

broad definition.

[¶13.]       Nevertheless, the Lindbloms cite several cases for the proposition that

an administrative agency’s “decisions” are entitled to deference. The Lindbloms

first direct us to Anderson v. Minn. Dep’t of Natural Res., 693 N.W.2d 181 (Minn.

2005). In Anderson, commercial beekeepers sued a paper company and the

Minnesota Department of Natural Resources for negligence, negligence per se, and

nuisance relating to the spraying of pesticides. Id. at 185. The defendants

supported their motion for summary judgment with the affidavit of the director of

the Minnesota Department of Agriculture Pesticide Enforcement Section. Id. at

190-91. Although “[t]he district court characterized the testimony of the state

agency expert as the agriculture department’s ‘official position’ and noted that

‘great deference’ routinely was given to agency determinations[,]” id. at 191, the

Minnesota Supreme Court declined to give deference to the affidavit. The
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Lindbloms argue that the Minnesota Supreme Court did not give deference to the

director’s opinion “because he was not acting in his Department capacity when

rendering his decision.” The Minnesota Supreme Court, however, noted that “in

this case, the expert was not an agency decision-maker engaged in the evaluation of

evidence by using his own expertise in an enforcement proceeding or adjudication.”

Id. (emphasis added). Thus, the court rejected the notion of deference not because

of the lack of an agency investigation, but rather because of the lack of an agency

proceeding or adjudication.

[¶14.]         The Lindbloms’ other citations are similarly ineffective. The

Lindbloms cite Cox v. U.S. Dep’t of Agric., 925 F.2d 1102, 1104 (8th Cir. 1991) (“The

Department of Agriculture’s decision must be upheld if it is supported by

substantial evidence.”); Crookston Cattle Co. v. Minn. Dep’t of Natural Res., 300

N.W.2d 769, 777 (Minn. 1980) (“Agency decisions are presumed correct by the

court . . . .”); and Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn. 1977)

(“[D]ecisions of administrative agencies enjoy a presumption of correctness, and

deference should be shown by courts to the agencies’ expertise and their special

knowledge in the field of their technical training, education, and experience.”).

Each of these cases, like Anderson, involves the review of an administrative

agency’s post-hearing decision or order, not merely the opinion of an agency official

offered to prove a private tort action. 3 Therefore we hold the circuit court was not



3.       The Lindbloms also cite to Bowles v. Seminole Rock & Sand Co., 325 U.S.
         410, 413-14, 65 S. Ct. 1215, 1217, 89 L. Ed. 1700 (1945); Minn. Life & Health
         Ins. Guar. Ass’n v. Dep’t of Commerce, 400 N.W.2d 769, 773 (Minn. Ct. App.
         1987); and the unreported case In re Capitol Am. Life Ins. Co. Fixed Indem.
                                                              (continued . . .)
                                            -8-
#27080

required to give deference to the Department’s pre-hearing determination that

Muhlenkort violated SDCL 38-21-44(2).

[¶15.]       2.     Whether the evidence is sufficient to sustain the circuit court’s
                    determination that Muhlenkort did not commit negligence.

[¶16.]       The Lindbloms argue that Muhlenkort applied the Roundup in a

manner inconsistent with the herbicide’s label instructions and that doing so was

negligent as a matter of law. We have long held that “an unexcused violation of a

statute enacted to promote safety constitutes negligence per se.” Thompson v.

Summers, 1997 S.D. 103, ¶ 16, 567 N.W.2d 387, 393 (quoting Bell v. East River

Elec. Power Coop., Inc., 535 N.W.2d 750, 755 (S.D. 1995)) (internal quotation marks

omitted). SDCL 38-21-44(2) provides, in part:

             The secretary of agriculture, pending inquiry and after
             opportunity for a hearing, pursuant to chapter 1-26, may deny,
             suspend, revoke, or modify any provision of any license or
             certification issued under this chapter, if he finds that the
             applicant or the holder of a license or certification has . . .
             [m]ade a pesticide recommendation or application inconsistent
             with the labeling . . . .

The parties agree that SDCL 38-21-44(2) is a safety statute meant to protect people

like the Lindbloms. Therefore we assume without deciding that SDCL 38-21-44(2)

is such a safety statute.

________________________
(. . . continued)
         Policy Forms, ZN, FR/ZM, JF/JG, FA/FA89, & FB, No. C4-98-1266, 1999
         WL 185197, at *3 (Minn. Ct. App. 1999). The relevance of these cases is even
         further strained as they address the deference given to an administrative
         agency’s interpretation of either its own regulations or an ambiguous
         enabling act when that particular agency is tasked with implementing the
         statutory provisions of the act. The present case does not involve regulatory
         construction, and no claim has been asserted that SDCL 38-21-44 is in any
         way ambiguous.


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[¶17.]         In order to prove Muhlenkort was negligent as a matter of law, the

Lindbloms were required to prove Muhlenkort violated SDCL 38-21-44(2)—i.e., the

Lindbloms were required to prove Muhlenkort applied the Roundup contrary to the

herbicide’s label instructions. The Lindbloms assert the settlement agreement

between Muhlenkort and the Department establishes that Muhlenkort violated

SDCL 38-21-44(2). That agreement reads, in relevant part:

               South Dakota Department of Agriculture . . . and Jeff
               Muhlenkort . . . hereby agree as follows: . . . The department’s
               investigation found that on June 24, 2011, at 8:00 p.m.,
               Muhlenkort made an application of Round-up Weather Max
               (glyphosate) to corn located south of Mr. Lindblom’s
               conventional corn. The Beresford automated weather data
               station indicated the wind on June 24, 2011, at 8 p.m. was
               southeast at 8 mph with gusts to 14 mph, making the
               application conducive for drift. Samples taken from Mr.
               Lindblom’s corn were found to contain residue of glyphosate, the
               active ingredient used in Round-up Weather Max.

(Emphasis added.) By their reading, the Lindbloms essentially omit the

emphasized portion of the agreement. As the circuit court correctly concluded, this

agreement does not evidence a violation of the statute; instead, it merely indicates

Muhlenkort acknowledged that the Department was convinced he violated SDCL

38-21-44(2).

[¶18.]         Absent an admission of a violation of the statute, the question of

whether or not Muhlenkort violated SDCL 38-21-44(2) becomes a question for the

fact-finder—the circuit court in this case. As we indicated above, “the successful

party is entitled to the benefit of his version of the evidence and of all favorable

inferences fairly deducible therefrom.” Fifteen Impounded Cats, 2010 S.D. 50, ¶ 26,

785 N.W.2d at 282 (quoting In re Estate of Pringle, 2008 S.D. 38, ¶ 18, 751 N.W.2d

at 284) (internal quotation mark omitted). The circuit court found credible
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Muhlenkort’s testimony that he did not begin spraying Hybertson’s field until close

to 8:30 p.m. The Defendants presented evidence to the circuit court that wind

speeds were less than ten miles per hour by that time. Therefore we are not “left

with the definite and firm conviction that a mistake has been made.” Id. (quoting

In re Estate of Pringle, 2008 S.D. 38, ¶ 18, 751 N.W.2d at 284). Because there is

evidence to support the circuit court’s finding that Muhlenkort did not apply the

herbicide in a manner “inconsistent with the labeling[,]” SDCL 38-21-44(2), the

circuit court did not err in concluding the Lindbloms failed to establish that the

Defendants committed negligence as a matter of law.

[¶19.]       Nor are we convinced that the circuit court clearly erred in

determining Muhlenkort’s actions otherwise conformed to an appropriate standard

of care. “Negligence is the breach of a duty owed to another, the proximate cause of

which results in an injury.” Englund v. Vital, 2013 S.D. 71, ¶ 11, 838 N.W.2d 621,

627 (quoting Janis v. Nash Finch Co., 2010 S.D. 27, ¶ 8, 780 N.W.2d 497, 500)

(internal quotation marks omitted). The circuit court noted that Muhlenkort’s

testimony regarding the wind conditions at the time he applied the herbicide was

consistent with wind data submitted to the court. Muhlenkort continually

monitored the wind conditions throughout the day. Prior to spraying the herbicide,

Muhlenkort dropped smoke to visually confirm the herbicide would not drift outside

of Hybertson’s field. Additionally, Muhlenkort utilized an anti-drift agent.

[¶20.]       On the other hand, the Lindbloms did not present any evidence to

refute the wind data provided by the Defendants, and the circuit court did not find

Trudeau’s testimony persuasive. Trudeau—a business competitor to Muhlenkort—


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observed Muhlenkort from his car while driving as far as a half mile away from

where Muhlenkort was spraying. Trudeau did not claim that he actually saw

chemical drift onto the Lindbloms’ field. Trudeau also admitted that he did not

know if Muhlenkort had already sprayed the north end of Hybertson’s field at the

time Trudeau observed him. In other words, Trudeau could not positively say that

what he thought was chemical drifting toward the north end of the field after

having been sprayed further south was not simply chemical that had been sprayed

at the north end of the field—without drifting—in the first place. Furthermore, the

circuit court was presented with evidence that the grass growing in the ditch

between the Lindbloms’ field and the road did not appear to be damaged, despite

Sinning’s theory that this same grass shielded the first few rows of the Lindbloms’

field from the herbicide spray.

[¶21.]       Additionally, the Defendants presented the circuit court with

plausible, alternative explanations for the damage to the Lindbloms’ corn. Most

notably, the Lindbloms hired Trudeau to apply the very same herbicide to their

soybean field—located immediately adjacent to the cornfield—almost a week prior

to Sinning’s inspection on July 6. Even though the Lindbloms and Trudeau claim

the damage to the corn became apparent prior to Trudeau’s application of Roundup

to the soybean field, they did not introduce evidence of how much glyphosate is

required to damage or kill corn. Therefore, Trudeau’s application of the herbicide to

the soybean field can potentially explain the presence of glyphosate in the

Lindbloms’ cornfield even if the circuit court believed that the damage manifested

prior to Trudeau’s application of the herbicide. The court also heard evidence


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regarding the earlier application of the Verdict herbicide in June, as well as

evidence regarding the moisture conditions of the Lindblom cornfield. The circuit

court was entitled to weigh all of this information in performing its function as the

fact finder.

[¶22.]         Even if the Lindbloms’ assertion that “[t]here is simply no other

explanation for the damage to Appellants’ corn” is correct, we have said, “The mere

fact an accident happened creates no inference that it was caused by someone’s

negligence.” Baddou v. Hall, 2008 S.D. 90, ¶ 27, 756 N.W.2d 554, 561 (quoting

Steffen v. Schwan’s Sales Enters., Inc., 2006 S.D. 41, ¶ 9, 713 N.W.2d 614, 618)

(internal quotation marks omitted). The Lindbloms were required to prove more

than damage to their corn or the mere presence in their field of the same type of

herbicide sprayed on Hybertson’s field; they were required to prove Muhlenkort

negligently sprayed herbicide. Because there is evidence to support the circuit

court’s conclusion that Muhlenkort was not negligent, the court did not err in

concluding the Lindbloms failed to sustain their burden.

                                      Conclusion

[¶23.]         The Department’s pre-hearing determination that Muhlenkort violated

SDCL 38-21-44(2) was not a “finding” entitled to deferential treatment, and

Muhlenkort’s agreement to settle with the Department in order to avoid litigation

was not an admission of guilt. Consistent with the standard of review in this case,

we have said, “It is not our role on appeal to retry this case or substitute our

judgment as to credibility and weight of the evidence. This Court defers to the

circuit court because of its ability to observe the witnesses.” Hubbard v. City of


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Pierre, 2010 S.D. 55, ¶ 27, 784 N.W.2d 499, 511. There was sufficient evidence for

the circuit court to conclude Muhlenkort did not apply the herbicide in a manner

inconsistent with its label requirements, or otherwise negligently. Therefore, the

circuit court did not err, and the Lindbloms were not entitled to recover damages.

We affirm.

[¶24.]       ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.




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