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BLM Violating Miner's Rights in Southern Nevada !


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The BLM is seeking to withdraw areas to new Mineral Location as well as limit our R.S. 2477 Rights-of-Way (right to travel) in Southern Nevada.. Nye and Clark Counties. This is most certainly a takings against everyone accepting their Right to Mine by Congressional Intent of the Mining Act of 1866 (HR 365).

I just got back from a local BLM "Comment" meeting here in Las Vegas and it was a Joke. No opportunity to comment publicly in front of all the attendees. Only privately in front of a court reporter or written comments.

We have to advocate for our right to mine now ! This is happening on some level everywhere ! If we don't our rights will be gone ! Please take time to submit written comments to the BLM via the web link below. You can also look at their plan, which is called the Regional Resource Management Plan.

https://www.blm.gov/epl-front-office/eplanning/planAndProjectSite.do methodName=dispatchToPatternPage&currentPageId=12401

For what it is worth I am posting my comments here so that you all may get an idea of what they are up to.

November 11, 2014

To: Lee Kirk, RMP Team Lead

BLM Southern Nevada District Office

4701 North Torrey Pines Drive,

Las Vegas, NV 89130

702-515-5026

sndo_rmp_revision@blm.gov

From: Mark Weiss

(Address Withheld.. this is the internet after all)

markthelocksmith@gmail.com

RE: Draft Resource Management Plan/Environmental Impact Statement, Fall 2014, U.S. Department of the Interior Bureau of Land Management Southern Nevada District Office: Appeal for “No Action”

Mr Lee Kirk :

As member of the mining community, a (not at large) member of Gold Searchers of Southern Nevada and Public Lands for the People, Inc and on behalf of my fellow members, their unorganized or independent Mining Districts, the 1000's of other congressional Mineral Estate Grantees, and every American that may be unaware of the threat against them and our property entrusted by Congress into your fiduciary care, I have become aware of the Draft Resource Management Plan/Environmental Impact Statement, Fall 2014, U.S. Department of the Interior Bureau of Land Management Southern Nevada District Offices (hereafter referred to as the “Draft RMP/EIS”), Request to withdraw several hundred miles of pre-existing roads from public access and to withdraw areas of undiscovered locatable minerals in the public domain from future entry and claim. I find The Request of great concern, very harmful, and constituting an unlawful takings, if actually acted upon by anyone, ever. I feel, despite it's high- sounding motivation, The Draft RMP/EIS, however is ill advised and in conflict with the laws of the United States and perpetual Congressional duty.

In the lawful spirit of and and by the intention of the US Congress to suggest further Coordination with Nye and Clark Counties, Mining Districts and and Citizens, and to remind sworn officers of both agencies and elected office of their fiduciary duty to uphold the laws of this great nation I am presenting the following deficiencies discovered to date, concerning the development and implementation of the Draft RMP/EIS. In the effort to avoid a great misunderstanding on the part of the BLM.

The BLM has no Discretionary Subject Matter Jurisdiction over the Mineral Estate. Withdrawing lands in the public domain from Mineral Entry is a takings against every United States Citizen even if a mining claim has yet to be located.

By the actions stated in the draft RMP/EIS The BLM assumes to have but was never granted Discretionary Subject Matter Jurisdiction over the the private property right that was granted by Congress to the Citizens of the United States by accepting of the Congressional intent to disposal Locatable Mineral Deposits under the United States National Mining Act of July 26, 1866 (HR 365) and the General Mining Law of 1872, as amended (hereafter the Locatable Mining Law of the United States title 30 sec 21-54). Special note must be made not to confuse the three classes of minerals disposed of by the above Act of Congress independently, known as Locateables, Leaseables, and Saleables. The class of concern here is those valuable deposits known as Locateables that were removed from Agency Authority and Jurisdiction by the Congressional land disposal of the above mentioned act.

The following supporting excerpts from the United States National Mining Act of July 26, 1866 (HR 365) and supporting case law justify the the Congressional mandated intent by granting the Locatable Minerals in the Public Domain (hereafter referred to as the Mineral Estate) accompanied by private property rights to all Citizens of the United States. In doing so Congress disposed the authority and jurisdiction of the United States over the Mineral Estate.

United States National Mining Act of July 26, 1866 (HR 365) Section One

Section One of the Act plainly demonstrates the Congressional intention of a Grant of all the Mineral Wealth in the United States.

“Section One: That the mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States, and those who have declared their intention to become citizens, subject to such regulations as may be prescribed by law, and subject also to the local custom or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States.

At the time this bill was in the House of Congress, the following description of the bill was recorded during it’s discussion which further describes the Congressional intent of the bill.

[The Bill] “Revolutionizing the whole land policy of the government, abdicating in the name of the nation, its authority and jurisdiction over the richest mineral possessions on Gods earth.” The Hon. Mr Julian as quoted in the The Encyclopedia Americana, 1919, Volume M Mining Laws of the United States, Page 184.

Belk v. Meagher, the United States Supreme Court

This ruling affirms without question the Congressional mandate of a complete grant of the Mineral Estate with unrefuted full private property rights.

"(T)he locator of a mining claim has a possessory title thereto, and the right to the exclusive possession thereof. The words imply property. The right to the exclusive possession and enjoyment of a mining claim includes the right to work it, to extract the mineral therefrom, to the exclusive property in such mineral, and the right to defend such possession. The right to the exclusive possession and enjoyment of property, accompanied with the right to acquire the absolute title thereto, presupposes a grant, and the instrument of this grant, as applied to mining claims upon the public lands, is the act of congress above referred to.” Union Oil Co. v. Smith, 249 U.S. 337, 346-47 (1919)

[This ruling asserts rights against other claimants including the BLM, which is acting as if it were a “Claim Jumper” over unlocated mining claims]. Mining claimants do not obtain enforceable rights against the United States until they make a valuable mineral discovery. But as a practical matter discoveries typically cannot be made without some exploratory work on the site. If claimants were not provided with some protection prior to discovery, chaos and free riding might well ensue. The Mining Law, as interpreted by the courts, gives claimants who have not yet made a discovery some rights against later claimants, under a doctrine known as pedis possessio (literally “possession of the foot,” foothold).

[The Mining Law] extends an express invitation to all qualified persons to explore the lands of the United States for valuable mineral deposits, and this and the following sections hold out to one who succeeds in making discovery the promise of a full reward. Those who, being qualified, proceed in good faith to make such explorations and enter peaceably upon vacant lands of the United States for that purpose are not treated as mere trespassers, but as licensees or tenants at will. For since, as a practical matter, exploration must precede the discovery of minerals, and some occupation of the land ordinarily is necessary for adequate and systematic exploration, legal recognition of the pedis possessio of a bona fide and qualified prospector is universally regarded as a necessity. It is held that upon the public domain a miner may hold the place in which he may be working against all others having no better right, and while he remains in possession, diligently working towards discovery, is entitled – at least for a reasonable time – to be protected against forcible,fraudulent, and clandestine intrusions upon his possession. © 2007 Brian E. Gray, Public Land Reader

Mr Kirk, any implementation of the Draft RMP/EIR under any excuse will constitute a takings against the Citizens of the United States and future Mineral Estate Claimants. I must remind you of your fiduciary duty as a Trustee of the Mineral Lands and appurtenant property Congress disposed of and placed into constructive trust by the Legislative Grant approved the United States National Mining Act of July 26, 1866 (HR 365)



The BLM has no Discretionary Subject Matter Jurisdiction to impose travel limits that prohibit ingress and egress to the Mineral Estate Lands.

By implementing Travel Restrictions of any type, The BLM asserts that they do not recognize the Granted Rights of Section Eight the Act of July 26, 1866 (HR 365). This encroachment constitutes a takings, a denial of R. S. 2477 right-of-way, and prohibitively restricts the location and development of the Mineral Estate it is not lawful under any excuse.

United States National Mining Act of July 26, 1866 (HR 365) Section Eight

Section Eight of the act demonstrated the clear Congressional mandate that the right to construct and use highways (inclusive of trails and footpaths) for the development of the Mineral Estate which was removed from Agency Authority and Jurisdiction by the Congressional land disposal act cited below .

Section Eight: And be it further enacted, That the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.”

“Section 8, which was later codified as Revised Statute 2477, deals with the establishment of ‘‘highways’’ across the land. The term highways as used in the 1866 Act refers to any road or trail used for travel. The right-of-way portion of this act was an absolute grant for the establishment of general crossing routes over these lands at any point and by whatever means was recognized under local rules and customs.” See Congressional Record of October 23, 2000 presented by the the honorable Jim Gibbons, of the final report of Chenoweth-Hage, based on unrefuted “testimony given and records available” of the Subcommittee on Forests and Forest Health, page E1885-E1886,

The United States Court of Appeals,Ninth Circuit. affirms the Granted Property Rights and Right of Travel for ingress and egress for the development of the Mineral Estate. In fact, the case below was reversed and remanded as an error in law. Justifying that the United States Forest Service had no Subject Matter Jurisdiction over the Mineral Estate.

United States Court of Appeals,Ninth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Steve A. HICKS, Defendant-Appellant. No. 01-30146. D.C. No. CR-00-00001-DWM. Argued and Submitted Nov. 5, 2002. Decided Nov. 14, 2002.

Corporate employee was convicted in the United States District Court for the District of Montana, Donald W. Molloy, Chief Judge, of operating motorcycle in area of National Forest closed to motor vehicles by Forest Service closure order, and he appealed. The Court of Appeals held that employee of corporation that owned subsurface mineral rights in national forest was not subject to Forest Service closure order that exempted landowners. Reversed and remanded.

This case was not selected for publication in the Federal Reporter. Please use FIND to look at the applicable circuit court rule before citing this opinion. (FIND CTA9 Rule 36-3.)

BLM Administrative Determinations on R.S. 2477 Rights-of-Way (From the Utah BLM Web Site).

“Section 8 of the Mining Act of 1866 provided: “and be it further enacted, that the right-of-way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” The statute was self enacting; rights being established by “construction” of a “highway” on unreserved public lands, without any form of acknowledgement or action by the Federal government. This section of the statute was later recodified as Revised Statute 2477. R.S. 2477 was repealed by FLPMA on October 21, 1976, with a savings provision for rights established prior.

The BLM does not have the authority to make binding determinations on the validity of R.S. 2477 right-of-way claims. The BLM may, however, make informal, non-binding, administrative determinations for its own land use planning and management purposes. Such determinations must be based in the particular laws of each state in which a claimed right-of-way is situated. In Utah, applicable State code provided for the acceptance of a right-of-way pursuant to R.S. 2477 across public lands not reserved for public purposes when a right-of-way had been used by the public for a continuous 10 year period.

As of February 2009, the BLM has been directed not to process or review any claims under R.S. 2477 pending further review and direction from the Secretary of the Interior” (http://www.blm.gov/ut/st/en/prog/more/lands_and_realty/R.S. 2477_rights-of-way.html)

In reading the BLM’s own web site and the supporting citation of case law and Congressional testimony and I ask the question Mr BLM, what legal construct is being used by the BLM in the Draft RMP/EIS to limit travel, ingress and egress to the Mineral Estate and deny the Congressional Mandated R.S. 2477 rights-of-way.

The BLM in the Draft RMP/EIR is errantly citing FLPMA (Federal Land Policy Management Act) as extinguishing R.S. 2477 rights and the “pedis possessio” right to “go look” for a locatable mineral claim.

The BLM though it’s core mission to To “sustain the health, diversity, and productivity of the public lands for the use and enjoyment of present and future generations' is mandated by the Federal Land Policy and Management Act (FLPMA) of 1976, as amended to manage public lands and their various resources so that they are used in the combination that will best meet the present and future needs of the American people. The Draft RMP/EIR is being driven by FLPMA.

FLMPA and United States National Mining Act of July 26, 1866 (HR 365) and the General Mining Law of 1872, as amended are both Land Disposal Acts with specific Congressional Mandates.

“The courts insist that these laws must be read in pari materia (all together). The courts have stated repeatedly that laws relating to the same subject (such as land disposal laws) must be read in pari materia (all together). In other words, FLPMA or any other land disposal act cannot be read as if it stands alone. It must be read together with all its parts and with every other prior land disposal act of Congress if the true intent of the act is to be known.”

“Each of these Acts contain “savings” clauses protecting existing right, including FLPMA. All acts of Congress, relating to land disposal contain a savings clause protecting prior existing rights. FLPMA contains a savings clause protecting prior existing property rights. There is an obvious reason for this. Any land disposal law passed by Congress without a savings clause would amount to a “taking” of private property without compensation. This could trigger litigation against the United States and monetary liability on the part of the U.S.” See Congressional Record of October 23, 2000 presented by the the honorable Jim Gibbons, of the final report of Chenoweth-Hage, based on unrefuted “testimony given and records available” of the Subcommittee on Forests and Forest Health, page E1885-E1886,

Mr Kirk, What legal construct is being used by the BLM to assert FLPMA to extinguish the exploration of the Mineral Estate and R.S. 2477 rights-of-way as Granted by United States National Mining Act of July 26, 1866 (HR 365)? Is FLPMA being applied as if it stands alone? I again remind you of you Fiduciary Duty as a trustee of the Mineral Lands and appurtenant property Congress disposed of and placed into constructive trust by the Legislative Grant. Any travel restrictions limiting ingress and egress to the Mineral Estate, under any excuse will constitute a takings against the Citizens of the United States and future Mineral Estate Claimants.

Other Case Law and Supporting USC’s demonstrate Lack of Agency Authority over the Mineral Estate

North American Transportation & Trading Co. v. U.S.

A valid location, though unpatented, is a grant in the nature of an estate in fee and if such an estate is taken by the United States, just compensation must be made. See U.S.C.A. Const. Amend. 5, North American Transportation & Trading Co. v. U.S., 1918, 53 Ct.Cl. 424, affirmed 40 S.Ct. 518, 253 U.S. 330.

United States v. Shumway

In light of this and other statutory authority, this Court has repeatedly admonished the Forest Service that it “lack authority effectively to repeal the [Mining Law of 1872] by regulationsunreasonably restrictive of mining rights. See United States v. Shumway, 199 F.3d 1093, 1107 (9th Cir. 1999); see also Skaw v. United States, 740 F.2d 932, 941 (Fed. Cir. 1984); . As the Shumway court emphasized, “[t]he owner of a mining claim owns property, and is not a mere social guest of the Department of Interior to be shooed out the door when the Department chooses. Rather, pursuant to the Multiple Use Act, the Department Must continue to coexist with a holder of a valid claim whose right to possession is vested.” Shumway, 199 F.3d at 1103.

16 USC Section 475 codified from the Organic Administration Act of 1897 and has not changed but it is not the purpose or intent of these provisions, or of said section, to authorize the inclusion therein of lands more valuable for the mineral therein, or for agricultural purposes, than for forest purposes.” This gives the Forest Service notice that as minerals are found ( filing of mining claims) the land is no longer under Forest Service discretionary authority and comes under laws to re enter the land under public domain doctrine. So once one files for a mining claim that notice would in fact gives notice to the US Government agencies to take the mining claim out of Forest Service jurisdiction and place it back in the public domain, i.e. BLM management, for it is going to be in mineral development.

16 USC 482 - Sec. 482. Mineral lands; restoration to public domain; location and entry

“Upon the recommendation of the Secretary of the Interior, with the approval of the President, after sixty days' notice thereof, published in two papers of general circulation in the State or Territory wherein any national forest is situated, and near the said national forest, any public lands embraced within the limits of any such forest which, after due examination by personal inspection of a competent person appointed for that purpose by the Secretary of the Interior, shall be found better adapted for mining or for agricultural purposes than for forest usage, may be restored to the public domain.”

“And any mineral lands in any national forest which have been or which may be shown to be such, and subject to entry under the existing mining laws of the United States and the rules and regulations applying thereto, shall continue to be subject to such location and entry, notwithstanding any provisions contained in sections 473 to 478, 479 to 482 and 551 of this title.

United States v. Nogueira

Powerful and longstanding Congressional policies favoring mining are set forth in the 1872 Mining Laws: “all valuable mineral deposits in lands belonging to the United States . . . shall be free and open to exploration and purchase . . .”. 30 U.S.C. § 22. As this Court has commented, “[no] citation of authority is required to support the statement that the all-pervading purpose of the mining laws is to further the speedy and orderly development of the mineral resources of our country”. United States v. Nogueira, 403 F.2d 816, 823 (9th Cir. 1968)

The BLM’s implementation of the Draft RMP/EIS is not acting in accord with National Strategic and Critical Minerals Production Act of 2013 (HR671) and Executive Order 10997.

The BLM’s RMP/EIS seeks to withdraw new locatable mineral entry (new mining claims) and severely restricting travel for the discovery of the same. In achieving this the BLM asserts that National Strategic and Critical Minerals Production Act of 2013 (HR671) and Executive Order 10997 have no standing and that any future unquantified need for said minerals for the defense of the United States of America is without merit.

National Strategic and Critical Minerals Production Act of 2013 (HR671) - Title I: Development of Domestic Sources of Strategic and Critical Minerals -

“(Sec. 101) Deems a domestic mine that will provide strategic and critical minerals to be an "infrastructure project" as described in Presidential Order "Improving Performance of Federal Permitting and Review of Infrastructure Projects" dated March 22, 2012.

Sec. 102) Sets forth the responsibilities of the lead agency (federal, state, local, tribal, or Alaska Native Corporation) with responsibility for issuing a mineral exploration or mine permit with respect to project coordination, agency consultation, project proponents, contractors, and the status and scope of any environmental impact statement.

Requires the lead agency to determine that any action to approve an exploration or mine permit does not constitute a major federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969 (NEPA) if the procedural and substantive safeguards of the lead agency's permitting process alone, any applicable state permitting process alone, or a combination of the two processes together provide an adequate mechanism to ensure that environmental factors are taken into account.

Requires the lead agency's project lead, upon request of a project proponent, to enter into an agreement with the project proponent and other cooperating agencies that sets time limits for each part of the permitting process.

Requires the lead agency, with respect to strategic and critical minerals within a federally administered unit of the National Forest System, to: (1) exempt from federal regulations governing Special Areas all areas of identified mineral resources in Land Use Designations (other than Non-Development Land Use Designations); (2) apply such exemption to all additional routes and areas that the agency finds necessary to facilitate the construction, operation, maintenance, and restoration of the areas of the identified mineral resources; and (3) continue to apply such exemptions after approval of the Minerals Plan of Operations for the unit.

(Sec. 103) Declares that the priority of the lead agency is to maximize mineral resource development while mitigating environmental impacts, so that more of the mineral resource can be brought to the market place.”

Executive Order 10997 ASSIGNING EMERGENCY PREPAREDNESS FUNCTIONS TO THE SECRETARY OF THE INTERIOR

By virtue of the authority vested in me as President of the United States, including authority vested in me by Reorganization Plan No. 1 of 1958 (72 Stat. 1799), it is hereby ordered as follows:

SECTION 1. Scope. The Secretary of the Interior (hereinafter referred to as the Secretary) shall prepare national emergency plans and develop preparedness programs covering (1) electric power; (2) petroleum and gas; (3) solid fuels; and (4) minerals. These plans and programs shall be designed to provide a state of readiness in these resource areas with respect to all conditions of national emergency, including attack upon the United States.

JOHN F. KENNEDY, THE WHITE HOUSE, February 16, 1962.

Mr Kirk, What legal construct is being used to limit, curtail and withdraw the Mineral Estate from future exploration and development and against the will of Congress and Executive Orders that demonstrate the strategic mineral needs of this nation? Again I remind you of you Fiduciary Duty to uphold ALL the laws of this nation and not just the ones that are convenient to agency agenda.

The BLM is not effectively Consulting and Coordinating with all local government agencies.

Section 5 of the BLM’s RMP/EIS appears to give mere “lip service” to the requirement to coordinate with other local governments under 43 USC 1712 (9). There are no details as to the concerns expressed, meeting minutes, and then names of the “other government” representatives that were present if such coordination took place at all.

43 USC 1712 (9)

[sECTION] (9) to the extent consistent with the laws governing the administration of the public lands, coordinate the land use inventory, planning, and management activities of or for such lands with the land use planning and management programs of other Federal departments and agencies and of the States and local governments within which the lands are located, including, but not limited to, the statewide outdoor recreation plans developed under the Act of September 3, 1964 (78 Stat. 897), as amended [16 U.S.C. 460l–4 et seq.], and of or for Indian tribes by, among other things, considering the policies of approved State and tribal land resource management programs. In implementing this directive, the Secretary shall, to the extent he finds practical, keep apprised of State, local, and tribal land use plans; assure that consideration is given to those State, local, and tribal plans that are germane in the development of land use plans for public lands; assist in resolving, to the extent practical, inconsistencies between Federal and non-Federal Governmental plans, and shall provide for meaningful public involvement of State and local government officials, both elected and appointed, in the development of land use programs, land use regulations, and land use decisions for public lands, including early public notice of proposed decisions which may have a significant impact on non-Federal lands. Such officials in each State are authorized to furnish advice to the Secretary with respect to the development and revision of land use plans, land use guidelines, land use rules, and land use regulations for the public lands within such State and with respect to such other land use matters as may be referred to them by him. Land use plans of the Secretary under this section shall be consistent with State and local plans to the maximum extent he finds consistent with Federal law and the purposes of this Act.

It is every Counties mission to protect not only individual freedom but the private property rights of rural producers, (timber, agricultural, mineral and industrial) as well as the safety and welfare of the Counties individual citizens. Both Clark and Nye Counties as well as the various Native American Tribes all certainly list the development of the Mineral Estate as a land use. What legal construct is being used to deprive the Tribal Members and County Citizens of future locatable mineral entry and the ability to allow ingress and egress of for the same? The implementation of the BLM’s RMP/EIS calls for the withdrawal Mineral Lands. What geological and economic surveys have been completed to ascertain the present and future value of the withdrawn minerals? Have the local governments been contacted in order to coordinate compensation to their citizens for such a takings? Have the elected Sheriff’s departments if the affected counties and tribes been notified that a takings could occur should the BLM move forward with their plans? (See the Attached Hage Case)


Can the BLM Dispossess a free grant of property? we ask a simple question..

To bring to your attention again to the ill-advised and unlawful nature BLM’s RMP/EIS, we ask the simple question, Can a grantor lawfully executing and memorializing a free grant of property and the right of ingress and egress to the same, [ via the United States National Mining Act of July 26, 1866 (HR 365) ] return at some future time to "amend", condition, control, diminish, regulate, retake or otherwise encroach, or trespass upon the Property subject of the grant, dispossessing the grantee?

In answering the simple question posed, My finding is that neither grantor nor agency, Mr BLM, may come at some future time to steal back or encroach in any way the property subject of a grant.

Mr. Kirk, the Resource Management Plan amounts to an ill advised trespass against the will and intent of the Congressional Act of July 26th 1866. It is ignorant in it’s standing as it does not recognize pre-existing law, Congressional testimony, and case law. It’s implementation will certainly result in a takings.

Mr. Kirk, on behalf of the mining community. I appeal to you not to institute any measure or alternative in the RMP not only for the reasons stated above in this letter but for yourself and fellow officers as you have a sworn solemn Fiduciary duty to uphold the laws of this nation specifically the Congressional Act of July 26th 1866. As I am sure you are aware you and any other law enforcement officer found to be in violation of their Fiduciary duty do not have Agency Protection from being personally accountable for their actions.

Respectfully,


Mark Weiss







Exhibits Attached as PDF’s

A)United States National Mining Act of July 26, 1866 (HR 365)

B) Congressional Record of October 23, 2000 presented by the the honorable Jim Gibbons, of the final report of Chenoweth-Hage, based on unrefuted “testimony given and records available” of the Subcommittee on Forests and Forest Health, page E1885-E1886,

C)Hage Case

1866.pdf

congressional-record-october-23-2000.pdf

Exhibit F Hage.pdf

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Welcome to my world as all 44 miles of claims between Trinity Lake and Helena being stolen also by the Trinity River Retardation Program sic sic sic. Fight'm or perish as many 100s of areas are now under attack by the Green machine and the insipid government. After all less users=less work so they can on their fat arses in soft chairs in air conditioned offices pontificating how to close more so they can do even less :2mo5pow::evil1: -John

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