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                                                           [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT



                               No. 18-10305
                           Non-Argument Calendar



                  D.C. Docket No. 1:17-cv-21422-DPG

ODALVIS FERNANDEZ,
JULIO RODRIGUEZ,
                                                          Plaintiffs - Appellants,

                                   versus



UNITED STATES OF AMERICA,

                                                          Defendant - Appellee.



               Appeal from the United States District Court
                   for the Southern District of Florida



                              (March 12, 2019)

Before MARCUS, ROSENBAUM, and BRANCH, Circuit Judges.

PER CURIAM:
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          This appeal concerns whether the United States is immune from suit based

on Florida’s recreational use statute for an injury that occurred on an area made

available to the public for recreational use without charge. Odalvis Fernandez and

Julio Rodriguez were swimming near the island of Boca Chita Key in Biscayne

National Park near Miami, Florida, when Fernandez injured her foot by stepping

on a submerged piece of rebar. Fernandez and Rodriguez sued the United States

for negligence under the Federal Tort Claims Act (“FTCA”). 1 The FTCA provides

that the United States may be sued for actions in negligence if a private party

would be subject to suit in the same circumstances. 28 U.S.C. § 1346(b)(1). The

district court granted the United States’ motion to dismiss for lack of subject matter

jurisdiction because Florida’s recreational use statute limits the liability of persons

who make a portion of their property available for recreational use without charge.

We agree with the district court and affirm.

                                        I.      BACKGROUND

          A. Factual Background and Procedural History.

          On July 12, 2015, Odalvis Fernandez and Julio Rodriguez traveled on their

boat to Boca Chita Key, an island located in Biscayne National Park, near Miami,

Florida. They anchored the boat in the waters of Biscayne Bay near Boca Chita


          1
              Rodriguez brought a related claim for loss of consortium that is not at issue in this
appeal.


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Key and went swimming in the designated swimming area, which was marked by

white buoys with “a red symbol—a diamond shape with an X inside—and lettering

designating the beach as a swim area and prohibiting marine vessels from

entering.” While they were swimming, Fernandez injured her foot by stepping on a

piece of rebar protruding from a submerged piece of concrete.

      Biscayne National Park is owned by the United States and managed by the

National Park Service. The National Park Service does not charge for entry into

Biscayne National Park but charges a $25.00 fee for camping or docking at Boca

Chita Key and Elliott Key, except during the summer when the fees are waived.

The National Park Service also rents the pavilion on Boca Chita Key for a fee of

$100.00 for four hours. The National Park Service charges no other fees in

Biscayne National Park.

      Fernandez and Rodriguez filed their amended complaint against the United

States on August 4, 2017, alleging negligence under the FTCA. The United States

moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of

subject matter jurisdiction, arguing that it is immune from liability under Florida’s

recreational use statute, Fla. Stat. § 375.251, because Fernandez’s injury occurred

in the designated swimming area of the park, which is made available to the public

free of charge. In response, Fernandez and Rodriguez argued that the United States

is not immune from liability because the National Park Service charges fees for


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camping and docking in Biscayne National Park. The district court granted

summary judgment in favor of the United States, concluding that “a plain reading

of the statute as a whole suggests that liability will not attach unless the injury

occurred in a distinct area where revenue is derived from patronage.” Fernandez

and Rodriguez appealed.

      B. The FTCA and Florida’s Recreational Use Statute.

      The FTCA provides that the United States district courts have jurisdiction

over damages claims against the United States alleging injury caused by “the

negligent or wrongful act or omission of any employee of the Government while

acting within the scope of his office or employment, under circumstances where

the United States, if a private person, would be liable to the claimant in accordance

with the law of the place where the act or omission occurred.” 28 U.S.C.

§ 1346(b)(1). Therefore, to determine whether the United States has waived its

sovereign immunity under the FTCA, we must look to the law of the State where

the act or omission giving rise to the litigation occurred. Daniels v. United States,

704 F.2d 587, 591 (11th Cir. 1983); 28 U.S.C. § 2674. In this case, we look to

Florida law.

      Florida’s recreational use statute, Fla. Stat. § 375.251, generally limits the

liability of private persons who make land, water, and park areas available to the




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public for recreational use without charge. Fla. Stat. § 375.251. Specifically,

section 375.251 currently provides, in relevant part: 2

       (1) The purpose of this section is to encourage persons to make land,
       water areas, and park areas available to the public for outdoor
       recreational purposes by limiting their liability to persons using these
       areas and to third persons who may be damaged by the acts or
       omissions of persons using these areas.

       (2)(a) An owner or lessee who provides the public with an area for
       outdoor recreational purposes owes no duty of care to keep that area
       safe for entry or use by others, or to give warning to persons entering
       or going on that area of any hazardous conditions, structures, or
       activities on the area. An owner or lessee who provides the public
       with an area for outdoor recreational purposes:

             1. Is not presumed to extend any assurance that the area is safe for
             any purpose;

             2. Does not incur any duty of care toward a person who goes on
                the area; or

             3. Is not liable or responsible for any injury to persons or property
             caused by the act or omission of a person who goes on the area.
       ...

        (c) The Legislature recognizes that an area offered for outdoor
       recreational purposes may be subject to multiple uses. The limitation
       of liability extended to an owner or lessee under this subsection
       applies only if no charge is made for entry to or use of the area for
       outdoor recreational purposes and no other revenue is derived from
       patronage of the area for outdoor recreational purposes.
       ...

       (5) As used in this section, the term:

       2
          Throughout this opinion, as we discuss both the current and former versions of the
statute, we use italics to show the portions of the statute that were amended by the Florida
legislature in 2012.
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      (a) “Area” includes land, water, and park areas.

      (b) “Outdoor recreational purposes” includes, but is not limited to,
      hunting, fishing, wildlife viewing, swimming, boating, camping,
      picnicking, hiking, pleasure driving, nature study, water skiing,
      motorcycling, and visiting historical, archaeological, scenic, or
      scientific sites.

The question we must answer in this appeal is whether section 375.251 shields an

owner or lessee from liability for an injury occurring in an area of a park in which

no fees are charged even though fees are charged elsewhere in the park.

      We have addressed that question as it relates to an earlier version of section

375.251. See Kleer v. United States, 761 F.2d 1492 (11th Cir. 1985). Kleer

concerned an accident in which William Russell Kleer suffered a fractured neck as

a result of diving off the Florida State Route 19 bridge in the Juniper Springs area

of the Lake George District of the Ocala National Forest. Id. at 1493. Kleer argued

that Florida’s recreational use statute did not shield the United States from liability

because the Forest Service charged a fee for entry into parts of the Ocala National

Forest, though not the Lake George District. At the time of Kleer, former section

375.251 provided in relevant part:

      (1) The purpose of this section is to encourage persons to make land, water
      areas, and park areas available to the public for outdoor recreational
      purposes by limiting their liability to persons using these areas and to third
      persons who may be damaged by the acts or omissions of persons using
      these areas.



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      (2)(a) An owner or lessee who provides the public with a park area
      for outdoor recreational purposes owes no duty of care to keep that
      park area safe for entry or use by others, or to give warning to
      persons entering or going on that park area of any hazardous
      conditions, structures, or activities thereon. An owner or lessee who
      provides the public with a park area for outdoor recreational purposes
      shall not by providing that park area:

          1. Be presumed to extend any assurance that such park area is
          safe for any purpose,

          2. Incur any duty of care toward a person who goes on that park
          area, or

          3. Become liable or responsible for any injury to persons or
          property caused by the act or omission of a person who goes on
          that park area.

      (b) This section shall not apply if there is any charge made or usually
      made for entering or using such park area, or any part thereof, or if
      any commercial or other activity for profit is conducted on such park
      area, or any part thereof.

      …

      (5) The term “outdoor recreational purposes” as used in this act shall
      include, but not be limited to, hunting, fishing, swimming, boating,
      camping, picnicking, hiking, pleasure driving nature study, water
      skiing, motorcycling, and visiting historical, archaeological, scenic or
      scientific sites.

      We concluded that section 375.251 foreclosed Kleer’s claim against the

United States because “the statute bars suits for injuries sustained in areas of parks

where no fee is charged and no commercial activity takes place” and no fee was

charged for entry into the Lake George area of the Ocala National Forest. Id. at

1495. We explained that “the phrase ‘park area’ denotes something less than the
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entire parcel of land,” meaning that the relevant area for purposes of the exception

from limited liability is the area in which the injury took place. Id. We also

explained that a narrow reading of the exception from protection against liability is

consistent with the statute’s express purpose to encourage people to make their

land available to the public for recreational use without compensation. Id.

      Further, we looked to the construction of section 375.251 in two related

Florida state court decisions—Abdin v. Fischer, 374 So.2d 1379 (Fla. 1979) and

Sea Fresh Frozen Products, Inc. v. Abdin, 411 So.2d 218 (Fla. 5th Dist. Ct. App.

1982). Abdin arose from an accident in which the plaintiff slipped and fell on a

boat ramp, which was open to the public free of cost. 374 So.2d at 1379. The

defendant also maintained a retail and wholesale business on three separate parcels

of land. Id. at 1379–80. The state trial court entered summary judgment in favor of

the defendant. Id. at 1381. The Supreme Court of Florida reversed, concluding that

whether commercial activity occurred in the park area was a question of fact for

the jury to resolve. Id. After remand and on appeal, the Florida Fifth District Court

of Appeals concluded that the evidence was insufficient to prove that the defendant

conducted commercial activity within the area where the accident took place. Sea

Fresh Frozen Prods., 411 So. 2d at 220. We concluded that the “Abdin rule” was

that the fact that “commercial activity was conducted in other areas of the

defendant’s property did not preclude the defendant from invoking the protection


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of section 375.251 [when no commercial activity was conducted within the park

area where the injury occurred].” Kleer, 761 F.2d at 1494.

      The Florida legislature amended section 375.251 to its current version in

2012, more than 26 years after the Kleer decision. The relevant 2012 amendments

replaced:

      This section shall not apply if there is any charge made or usually
      made for entering or using such park area, or any part thereof, or if
      any commercial or other activity for profit is conducted on such park
      area, or any part thereof.

Fla. Stat. § 375.251(2)(b) (1975), with:

      The Legislature recognizes that an area offered for outdoor
      recreational purposes may be subject to multiple uses. The limitation
      of liability extended to an owner or lessee under this subsection
      applies only if no charge is made for entry to or use of the area for
      outdoor recreational purposes and no other revenue is derived from
      patronage of the area for outdoor recreational purposes.

      Fla. Stat. § 375.251(2)(c) (2012). The amendments also added a definition of

“area” to include “land, water, and park areas,” id. § 375.251(5)(a), and changed

“park area” to “area,” id. § 375.251

                        II.    STANDARD OF REVIEW

      We review de novo a district court’s dismissal of an action for lack of

subject matter jurisdiction. Zelaya v. United States, 781 F.3d 1315, 1321 (11th Cir.

2015). “Federal courts are courts of limited jurisdiction. They possess only that

power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co.


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of Am., 511 U.S. 375, 377 (1994). “[T]he burden of establishing [subject matter

jurisdiction] rests upon the party asserting jurisdiction.” Id. Given that the United

States raised a facial challenge to the complaint, we look to see if Fernandez and

Rodriguez “sufficiently alleged a basis of subject matter jurisdiction, and the

allegations in [the] complaint are taken as true for the purposes of the motion.”

Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (quoting Menchaca v.

Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)).

                                III.   DISCUSSION

      Fernandez and Rodriguez argue that the district court erred in dismissing the

complaint for lack of subject matter jurisdiction because the United States would

be subject to liability under Florida’s recreational use statute as a private party. See

28 U.S.C. § 1346(b)(1); Fla. Stat. § 375.251. First, they argue that the plain

language of section 375.251 supports their reading, but that even if it does not, we

should reject the statute’s plain meaning because it leads to absurd results. Second,

they argue that the 2012 amendments render this Court’s decision in Kleer

inapplicable. Third, they argue that even if this Court agreed with the district court

that the United States has immunity with respect to injuries occurring in distinct

areas made available to the public without charge, there is a disputed factual

question as to whether the swimming area is a distinct area of Biscayne National




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Park. For the reasons that follow, we find each of Fernandez and Rodriguez’s

arguments unpersuasive.

      A. Section 375.251 Provides that Liability Attaches Only if Charges Are
         Made in the Distinct Area Where the Injury Occurred.

       “When construing the language of a statute, we ‘begin where all such

inquiries must begin: with the language of the statute itself,’ and we give effect to

the plain terms of the statute.” In re Valone, 784 F.3d 1398, 1402 (11th Cir. 2015)

(alteration adopted) (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235,

241 (1989)). “We do not look at one word or term in isolation, but instead we look

to the entire statutory context.” United States v. DBB, Inc., 180 F.3d 1277, 1281

(11th Cir. 1999).

      At the same time, we are not deciding this case on a blank slate, and

therefore, this Court’s decision in Kleer must guide our analysis. “The Legislature

is presumed to know the judicial constructions of a law when amending that law,

and the Legislature is presumed to have adopted prior judicial constructions of a

law unless a contrary intention is expressed.” Fla. Dep’t of Children & Families v.

Florida, 880 So.2d 602, 609 (Fla. 2004) (citing City of Hollywood v. Lombardi,

770 So.2d 1196, 1202 (Fla. 2000)). We presume that the legislature “adopt[ed] the

existing interpretation unless it affirmatively acts to change the meaning.” Bledsoe

v. Palm Beach Cty. Soil & Water Conservation Dist., 133 F.3d 816, 822 (11th Cir.

1998). Therefore, our analysis is focused on the question of whether anything in
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the 2012 amendments “affirmatively acts to change the meaning” ascribed to

section 375.251 by Kleer. Id.3

       Starting at the beginning of the statute, the legislature did not amend the

express statutory purpose contained in subsection (1). Subsection (1) provides:

“The purpose of this section is to encourage persons to make land, water, areas,

and park areas available to the public for outdoor recreational purposes by limiting

their liability to persons using these areas.” Fla. Stat. § 375.251(1). The legislature

also directed courts to “liberally construe[]” the provisions of the statute in order to

accomplish that purpose. Fla. Stat. § 375.061. The Kleer decision, and the district

court’s decision, are both consistent with that express statutory purpose.

       Next, the legislature amended subsection (2)(a) by changing “park area” to

“area.” That subsection currently provides the general rule that “[a]n owner or

lessee who provides the public with an area for outdoor recreational purposes

owes no duty of care to keep that area safe for entry or use by others.” Fla. Stat.

§ 375.251(2)(a). At the time of Kleer, that provision read: “[a]n owner or lessee

who provides the public with a park area for outdoor recreational purposes owes



       3
          Fernandez and Rodriguez also argue that we should reject Kleer altogether because it
improperly applied Florida Supreme Court precedent. However, we may not depart from a prior
panel’s decision “based upon a perceived defect in the prior panel’s reasoning or analysis as it
relates to the law in existence at that time.” Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir.
2001); see also United States v. Steele, 147 F.3d 1316, 1317–18 (11th Cir. 1998) (en banc)
(“Under our prior panel precedent rule, a panel cannot overrule a prior one’s holding even
though convinced it is wrong.”).
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no duty of care to keep that park area safe for entry or use by others.” Fla. Stat.

§ 375.251 (1975). A similar change was made to subsection (2)(c) which limits the

general rule in subsection (2)(a) to situations in which “no charge is made for entry

to or use of the area for recreational purposes and no other revenue is derived from

patronage of the area for recreational purposes.” Id. § 375.251(2)(c). When this

Court decided Kleer the subsection provided that the limitation on liability shall

not apply “if there is any charge made or usually made for entering or using such

park area, or any part thereof, or if any commercial or other activity for profit is

conducted on such park area, or any part thereof.” Fla. Stat. § 375.251 (1975).

      The general rule contained in subsection (2)(a) thus remains the same as the

previous version except for the substitution of “park area” for “area.” Fernandez

and Rodriguez argue that this change reflects an affirmative act to change the Kleer

interpretation because the legislature removed every reference to the term “park

area” that was at issue in Kleer. However, the legislature did not eliminate every

reference to “park area” but only moved it into the definition of “area.” At the time

this Court decided Kleer, the statute used the term “park area” but did not define

that term. This Court held that subsection (2)(a), and subsection (2)(c) which we

discuss specifically later, refer to the particular area where the injury occurred

because “park area” denotes something less than the entire parcel. With the 2012

amendments, the legislature simply changed the word in subsection (2)(a) to “area”


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and provided the following definition: “‘Area’ includes land, water, and park

areas.” Fla. Stat. § 375.251(5)(a). Accordingly, while this change expands the

types of areas within the statute to include land areas and water areas, it

nonetheless keeps the limiting term “area” such that our Kleer analysis continues

to apply. Further, this change is consistent with the express statutory purpose to

“encourage persons to make land, water areas, and park areas available to the

public,” id. § 375.251(1), which was not changed.

      Fernandez and Rodriguez also argue that the new definition of “area” itself

reflects the legislature’s intent to change the Kleer interpretation of “park area” as

denoting something less than the entire parcel by including a broad definition of

“area.” However, the statutory definition merely tracks what Kleer said—that a

“park area” is something less than the entire parcel. The fact that the legislature

decided to add land areas and water areas does not change the essential fact,

recognized in Kleer, that a park area means something less than the entire parcel.

      Turning to the exception to the limitation on liability in subsection (2)(c), as

already explained, that subsection continues to provide that an owner or lessee is

not exempted from liability if he charges for entry into or use of the area. The

“entry to or use of” clause remains substantively the same. And although the

legislature changed “any commercial or other activity for profit” to “revenue

derived from patronage,” that change is immaterial to the question presented here


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because it concerns the types of charges that cause the exception from limited

liability to apply, not the scope of the relevant area. Fernandez and Rodriguez

argue that by adding a new first sentence to subsection (2)(c) the legislature

affirmatively rejected Kleer. That sentence reads: “The Legislature recognizes that

an area offered for outdoor recreational purposes may be subject to multiple uses.”

But that sentence tracks Kleer and simply made explicit what was implicit in the

previous version of the statute—that an area might be subject to multiple uses.

Accordingly, we find nothing in the text of section 375.251 that constitutes an

affirmative act by the legislature to change the interpretation provided in Kleer.

      Finally, in subsection (5), the legislature added the definition of “area,”

which includes three different types of areas—“land, water, and park areas.” Id.

§ 375.251(5)(a). Before the amendment, the statute referred only to “park area.” As

already explained, this change clarifies that land areas, water areas, and park areas

are within the scope of section 375.251, consistent with the express statutory

purpose to “encourage persons to make land, water areas, and park areas available

to the public.” Id. § 375.251(1). Accordingly, it tracks Kleer’s holding that the

exception from limited liability applies only if an owner or lessee charges fees in

the particular area where the injury occurred. We also find no affirmative act to

change Kleer in the amendment to subsection (5)(b). That amendment changed

“[t]he term ‘outdoor recreational purposes’ as used in this act shall include, but


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not be limited to, hunting, fishing, wildlife viewing, swimming, boating, camping,

picnicking, hiking pleasure driving, nature study, water skiing, motorcycling, and

visiting historical, archaeological, scenic, or scientific sites” to “‘[o]utdoor

recreational purposes’ includes, but is not limited to, hunting, fishing, wildlife

viewing, swimming, boating, camping, picnicking, hiking pleasure driving, nature

study, water skiing, motorcycling, and visiting historical, archaeological, scenic, or

scientific sites.” That minor change to the definition of a term not at issue in Kleer

does not reflect an affirmative attempt to change Kleer’s holding that “park area”

denotes something less than the entire parcel.

      Fernandez and Rodriguez argue that even if the plain meaning of section

375.251 continues to require adherence to Kleer, we should reject that plain

meaning because it leads to absurd results. In particular, they assert that the

legislature could not have intended the anomalous result that the United States

would be immune with respect to injuries occurring in the pavilion on Boca Chita

Key but not in the designated swimming area or on the walkway to the pavilion.

We disagree that such result is absurd. The legislature could reasonably have

decided to limit liability with respect to each specific area that is made available

free of charge in order “to encourage persons to make land, water areas, and park

areas available to the public for outdoor recreational purposes by limiting their




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liability to persons using these areas.” Fla. Stat. § 375.251(1). In fact, that is

exactly what this Court recognized in Kleer. Kleer, 761 F.2d at 1495.

       Having found nothing in the text of section 375.251 that clearly shows the

legislature sought to change Kleer’s interpretation of that statutory provision, we

apply the holding of Kleer that an owner or lessee is immune from liability so long

as he makes no charges in the particular area where the injury occurred.

       B. It is Undisputed that the United States Does Not Charge Fees for Use
          of or Derive Revenue from the Relevant Park Area.

       Fernandez and Rodriguez argue that even if we conclude that the United

States is not liable for injuries occurring in distinct areas where no fees are

changed, a disputed factual question exists about whether the swimming area, the

boat dock, the pavilion, and the camping areas are inextricably intertwined such

that they are one area for purposes of section 375.251. However, we do not find

such issue fairly disputed.4 Fernandez and Rodriguez’s amended complaint does

not allege that the swimming area is so intertwined with other areas of Biscayne

National Park that it is not a distinct area. In fact, the amended complaint alleges


       4
          Fernandez and Rodriguez argue that Florida courts often have determined that the
applicability of section 375.251 is an issue of fact that must be decided by a jury citing Abdin,
374 So.2d at 1380, Arias v. State Farm Fire & Casualty Co., 426 So.2d 1136, 1139 (Fla. 1st
Dist. Ct. App. 1983), and Goodman v. Juniper Springs Canoe Rentals & Recreation, Inc., 983 F.
Supp. 1384, 1387 (M.D. Fla. 1997). However, in those cases, there were disputed factual issues
about whether the defendant owned the relevant area or whether the defendant charged fees or
received revenue from such area. Here, Fernandez and Rodriguez do not dispute that the United
States owns Biscayne National Park, nor do they dispute that the United States does not charge
fees for or receive revenue from use of the designated swimming area.
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that the “designated swimming area” was surrounded by white buoys with “a red

symbol—a diamond shape with an X inside—and lettering designating the beach

as a swim area and prohibiting marine vessels from entering.” Because we must

consider those allegations as true, McElmurray v. Consol. Gov’t of Augusta-

Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007), we conclude that the

swimming area is distinct from the other areas of Boca Chita Key. And since

Fernandez and Rodriguez do not allege that the United States charges fees for or

derives revenue from use of the designated swimming area, the United States did

not waive its sovereign immunity under the FTCA, and the district court properly

dismissed the complaint.

                              IV.   CONCLUSION

      The judgment of the district court is AFFIRMED.




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