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December 18, 2020

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Impacts to Future Compatible Use Buffers under 10 USC §2864a post Weyerhaeuser - Barbara Kerrane

Introduction

Under Weyerhaeuser Co. v. US Fish and Wildlife, and related finalized and proposed changes to Endangered Species Act (ESA) regulations, private landowners may have less financial incentive to grant conservation easements to the military for new cooperative agreements. In short, the holding in Weyerhaeuser was twofold: a) critical habit must first be “habitat”; and b) and the Services’ (US Fish and Wildlife or National Marine Fisheries Service) decisions not to exclude habitat from critical habitat designation is reviewable under the Administrative Procedure Act (APA). [1]

Landowners that might otherwise grant a conservation easement for a cooperative agreement under 10 U.S.C. §2864a to control land use, enable military operations, and incidentally protect threatened and endangered species may hold off because their land may be more valuable (above fair market value) for private development.[2] In the case of development that requires a permit under section 404(b) of the Clean Water Act, Section 7 consultation and limitations to destruction or adverse modification of critical habitat would be triggered under the Endangered Species Act.[3] For example, construction of a new housing development would require numerous new water connections, filling of wetlands and construction of new drainage ditches. Because these activities are not exempted from requiring a federal permit, the federal hook of the ESA applies. [4]

Weyerhaeuser

Well into the current presidential administration, Weyerhaeuser, a near unanimous (Justice Kavanaugh did not take part in the decision) Endangered Species Act (16 U.S.C. §1533) case involving the dusky gopher frog and development of private property in St. Tammany Parrish, Louisiana was issued. [5] The Fish and Wildlife Service (FWS) had listed the dusky gopher frog as endangered in 2001. [6] In response to a 2007 lawsuit filed by the Center for Biological Diversity and Friends of Mississippi Public Lands for failure to designate the dusky gopher frog’s critical habitat, FWS agreed to make a critical habitat designation.[7] The determination included consideration of several parcels of private land, 1996 hectares in Harrison, Jackson and Forrest Counties, Mississippi and 625 hectares in St. Tammany Parrish, Louisiana.[8]

Although Weyerhaeuser, a timber company, may not be impeded in timber management by a critical habitat designation, it leases land from a group of family landowners in St. Tammany Parrish who could sell the land for private development for up to 34 million dollars.[9] The Court noted that the families may need to apply for a federal permit under the Clean Water Act to fill in wetlands, which the Service could deny.[10]

According to Malcolm and Lee, the denial of a permit application is unlikely based on their analysis of Fish and Wildlife data between 2008-2015 during which no permit applications were stopped by a jeopardy finding. [11] However, in previous periods they analyzed jeopardy findings did result in stopping proposed projects. [12] It is also possible that a project was never proposed or withdrawn due to a jeopardy determination instead of denied.[13] Also, 20 percent of formal consultations between 2008-2015 were longer than the 135 days prescribed by the Service regulations.[14] Even if a permit is never denied, the landowner would need to apply for the permit and the Service would need to do the formal Section 7 consultation should the informal consultation conclude the action is likely to affect the species or critical habitat. [15] [16] The process itself is an encumbrance on land use due to time and expense of consultation and the unpredictability of political will for conservation and expansion or contraction of enforcement of the ESA.

Proposed and Finalized Regulations

The Service has final rules and proposed changes to several regulations in 50 C.F.R Part 17 post-Weyerhaeuser including “adding a requirement that, at a minimum, an unoccupied area must have one or more of the physical or biological features essential to the conservation of the species in order to be considered as potential critical habitat. We note that we do not in the rule attempt to definitively resolve the full meaning of the term ‘‘habitat.’’[17] In August 2020, the Service proposed a definition of habitat in 50 CFR §424.02 as, “[t]he physical places that individuals of a species depend upon to carry out one or more life processes. Habitat includes areas with existing attributes that have the capacity to support individuals of the species.”[18] If critical habit must now be defined as habitat and the proposed definition of habitat is qualified by the property having “existing attributes” to support species, it is likely that less property would be subject to designation. Private landowners planning to conduct activities on their land that require a federal permit such as dredging and filling a wetlands will have less limitations because designation as critical habitat will be less likely. In turn, the flexibility of use and disposition of their land will make it more valuable.

Similarly, a proposed regulation in 50 CFR Part 17, Subpart I, titled §17.90 Impact analysis and exclusions from critical habitat, is pending finalization and, if final, would require a specific exclusion analysis framework. [19] The following excerpt of the proposed regulation is specific to the Department of Defense (DoD).

(d) When the Secretary conducts a discretionary exclusion analysis pursuant to paragraph (c) of this section, the Secretary shall weigh the benefits of including or excluding particular areas in the designation of critical habitat, according to the following principles: (1) When analyzing the benefits of including or excluding any particular area based on impacts identified by experts in, or by sources with firsthand knowledge of, areas that are outside the scope of the Service’s expertise, the Secretary will assign weight to those benefits consistent with the expert or firsthand information, unless the Secretary has knowledge or material evidence that rebuts that information. Impacts that are outside the scope of the Service’s expertise include, but are not limited to:

 

(iii) Impacts based on national security or homeland security implications identified by the Department of Defense, Department of Homeland Security, or any other Federal agency responsible for national security or homeland security; [20]

Post Weyerhaeuser, the Service Secretary’s decision not to conduct the analysis is reviewable for abuse of discretion, so the Service is more likely to consider exclusion in general. Consistent with the narrowing of the definition of critical habitat, this rule change has the potential to shrink habitat of endangered species. Significantly, the proposed regulation expands exclusion analysis to activities on land not owned or managed by DoD. This could presumably include areas nearby but off an installation that could become part of a cooperative agreement.

Cooperative Agreements and Compatible Use Buffer Zones

The Army version of a cooperative agreement is called an Army Compatible Use Buffer Zone (ACUB) that enables units to train as they fight while building partnerships and protecting the environment. [21] The Army, numerous non-federal entities (NFE) and the public at large can benefit from cooperative agreements for conservation on real property adjacent to military installations. [22] Instead of halting essential training at a critical time due to an endangered species or plant, the Army and conservancy organizations can make a new home for that species or plant out of harm’s way.[23] That new home can be protected by a conservation easement that can prohibit development and destruction of natural habitat such as the San Pedro Riparian Area home to the Huachuca water umbel outside of Fort Huachuca, Arizona.[24] The easement could protect the species that might otherwise be subject to a take determination based on non-federal activities on the private portion of the land.[25] An easement may also be granted to prevent or reduce nuisances caused by military operations such as noise, smoke or other potential dangers.[26] These easements could also work by limiting residential development near an installation, such as maneuver areas in Killeen outside of Fort Hood, Texas, which could result in resident complaints.[27] The cost of ACUBs is not completely born on the military but shared between the Army and the interested organizations in the form of partner funds. [28]

In 1960, Congress enacted Public Law 86-797 later codified as 16 U.S.C. § 670a and known as the Sikes Act, “[t]o promote effectual planning, development, maintenance, and coordination of wildlife, fish, and game conservation and rehabilitation in military reservations.”[29] Under Sikes, the Secretary of Defense (SECDEF) is authorized to enter into cooperative agreements with the Secretary of Interior and state agencies for conservation of wildlife, fish and game. [30] However, the Sikes Act does not enable the SECDEF to acquire real property with appropriated funds. [31]

These agreements between the military, private conservation organizations, states and private landowners “include limiting encroachment through acquisition of development rights, cooperative agreements (CAs), conservation easements, and other means to support land acquisition or affect land use in accordance with applicable laws.”[32] Although the Army does not acquire title in the property, the Army retains a protective easement only to be exercised if the ACUB partner developed the land for an incompatible reason.[33] For example, if land around Fort Bragg was intended to provide additional land for RCW habitat under a conservation easement and instead TNC sold their interest to the Walmart Corporation who planned to pave a parking lot for a new store, the Army could exercise its protective easement to maintain the RCW’s habitat.

By 2002, Congress codified agreements of the type used at Fort Bragg with purposes that include limiting use or development incompatible with the installation mission and preserving habitat. [34] State or political subdivisions of a state and conservation, preservation, or restoration private entities may enter into such agreements.[35] The Army defines such agreements as “formal agreements between Army and eligible entities for acquisition by the entities of land or interest in land and water rights from willing sellers.” [36] Funds and interests in real property or both paid by a military service cannot exceed fair market value.[37] Each military installation is subject to an Integrated Natural Resources Management Plan (INRMP) and therefore no critical habitat designation under the ESA is required.[38]

The Assistant Chief of Staff for Installation Management serves as the proponent of the ACUB program.[39] It is Army policy to “[q]uantify environmental encroachment vulnerabilities and assess the feasibility of using external buffer zones to enhance testing and training capabilities.”[40] In regards to threatened and endangered (T&E) species, Army policy is to “[d]evelop and implement strategies to promote, in cooperation with other landowners, the use of conservation banking and/or ACUB initiatives to minimize impacts of an action on T&E [threatened and endangered] species and/or critical habitat.” [41]

In 2003, Congress authorized the secretary of a military department to convey real property to a person who agrees to transfer other real property or lesser interest in real property under 10 USC § 2684a.[42] This provision generally applies to property under the jurisdiction of that secretary that is located on a military installation subject to base realignment and closure (BRAC).[43] This provision may enable the relevant secretary to exchange property for which the service has little continuing use for property that may be nearby the realigned installation or another installation in order to meet conservation goals and requirements.

Congress distinguished between military installations and state-owned National Guard

installations in the Sikes Act.[44] The previous text of 10 USC § 2684a did not include the term, “state-owned National Guard installation” but instead only included, “military installation.”[45] In the 2019 National Defense Authorization Act (NDAA), Congress clarified that state-owned National Guard installations qualify as military installations and have always qualified under 10 USC § 2684a.[46] This sense of Congress is retroactive to 2 December 2002.[47]

Red-Cockaded Woodpecker

By 1995, conservation of the Red-cockaded Woodpecker (RCW), an endangered species that inhabited critical training land during a critical training period, prompted a cooperative conservation project at Fort Bragg.[48] [49] Partners in this cooperative agreement included Fort Bragg, the U.S. Army Environmental Center (USAEC) and The Nature Conservancy (TNC).[50] Pursuant to the agreement, the Army contributed appropriated funds to which TNC contributed funds and negotiated conservation easements or fee simple ownership in real property adjacent to Fort Bragg.[51] The Army and TNC both met their respective goals. The Army recovered use of training lands on Fort Bragg and the RCW recovered from a threat to its population.[52]

The RCW was recently proposed for downlisting from endangered.[53] The RCW still inhabits several military installations in the Southeast. Fort Benning, for instance, needed more room to train after the Armor School moved there from Fort Knox. Private landowners were paid by the military for a conservation easement so the RCW could expand its habitat off the installation and not interfere with training.

Federal Nexus and Destruction or Adverse Modification of Critical Habitat

Federal ESA regulations require Section 7 consultation for, “all actions in which there is discretionary involvement or control.” [54] Actions are defined to include grants of permits or grants-in-aid.[55] Critical habitat designation will not affect land use unless federal funds or a federal permit are required. [56] A likely example would be a commercial or residential developer applying for a 404(b) permit under the Clean Water Act. [57] The construction of a drainage ditch or new use of water, even if the activity is generally exempted, requires a permit if it would result in a reduction in reach or impairment of flow or circulation of regulated waters or more generally anytime you convert wetland to upland.[58]

Several developers applied for 404(b) permits with the US Army Corps of Engineers (USACE) for land in Tammany Parrish, Louisiana and Forrest County, Mississippi prior to the new Waters of the United States (WOTUS) rule in 2020.[59] [60] An example of a permit filed in St. Tammany Parrish, Louisiana where the dusky gopher frog, whose habitat was the subject of debate in Weyerhaeuser, was last seen in 1965 include a 2015 permit to clear, grade, excavate and fill for residential development.[61] The dusky gopher frog’s habitat is generally underground and includes vernal pools or ephemeral ponds that are full of water seasonally. To help with recovery of the dusky gopher frog, Camp Shelby is breeding frogs onsite. [62] [63]

After the promulgation of the new WOTUS rule, developers continued to apply for federal permits under CWA 404(b) in Tammany Parrish and Forrest County.[64] Forrest County is the home of Camp Shelby, a National Guard (2016) installation.[65] Camp Shelby participates in a cooperative agreement with The Nature Conservancy and several state and federal agencies to protect endangered and threatened plants and animal species in the DeSoto National Forest.[66] Should the participants in the agreement seek to expand the area covered by the agreement and bring in new private landowners, those landowners may find more financial benefit in selling their land to a housing developer. With less likelihood of private land being designated as critical habitat, land may be more valuable to sell instead of granting a conservation easement. Both before and after the new definition of WOTUS, landowners with land outside of Camp Shelby have applied for federal permits which triggers ESA Section 7 consultation and the prohibition on destruction or adverse modification of critical habitat. [67]

Conclusion

The myriad of proposed and completed changes to regulations under the ESA and Weyerhaeuser decrease the breadth of potential critical habitat designation. Without the threat of designation, private land may be worth more to sell to developers than to conserve with an easement. New cooperative agreements (ACUBs or otherwise) may be hampered if landowners’ uses that may have required Section 7 consultation due to critical habitat designation no longer are subject to that burden. In this sense, the limitation on the definition of critical habitat is a negative consequence.

 

[1] Weyerhaeuser Co. v. U.S. Fish and Wildlife, 139 S.Ct. 361, 367 (2018).

 

Only the “habitat” of the endangered species is eligible for designation as critical habitat. Even if an area otherwise meets the statutory definition of unoccupied critical habitat because the Secretary finds the area essential for the conservation of the species, Section 4(a)(3)(A)(i) does not authorize the Secretary to designate the area as critical habitat unless it is also habitat for the species.

 

Section 4(b)(2) requires the Secretary to consider economic impact and relative benefits before deciding whether to exclude an area from critical habitat or to proceed with designation. The statute is, therefore, not “drawn so that a court would have no meaningful standard against which to judge the [Secretary’s] exercise of [his] discretion” not to exclude. Lincoln, 508 U.S., at 191, 113 S.Ct. 2024.

 

Because it determined that the Service’s decisions not to exclude were committed to agency discretion and therefore unreviewable, the Court of Appeals did not consider whether the Service’s assessment of the costs and benefits of designation was flawed in a way that rendered the resulting decision not to exclude Unit 1 arbitrary, capricious, or an abuse of discretion.

 

[2] U.S. Army Envt’l Command, Army Compatible Use Buffer Program, Year End Summary FY12 (2012) at 1.

 

[3] 77 Fed.Reg. 35123 (2012) (Final rule)

 

[4] Weyerhaeuser Co. v. U.S. Fish and Wildlife, 139 S.Ct. 361, 367 (2018).

 

[5] Id.

 

[6] Final Rule to List the Mississippi Gopher Frog Distinct Population Segment of Dusky Gopher Frog as Endangered, 66 Fed.Reg. 62993 (2001) (Final Listing).

 

[7] Designation of Critical Habitat for Dusky Gopher Frog, 77 Fed.Reg. 35129-35131 (2012) (Designation)

 

[8] Id. 35118.

 

[9] Weyerhaeuser Co. at 367.

 

[10] Id.

 

[11] Malcom, Jacob W. & Li, Ya-Wei, Data contradict common perceptions about a controversial provision of the US Endangered Species Act p. 2, https://defenders.org/sites/default/files/publications/section-7-pnas_0.pdf (last accessed on December 6, 2020).

 

[12] Id. at 1. (1.8% projects were stopped between 1979-1981 and 0.47% between 1987-1991. 7.2% of formal consultation between 2005-2006 resulted in a jeopardy determination and 6.7% resulted in in a destruction or adverse modification to critical habitat determination).

 

[13] Id. at 4.

 

[14] Id. at 2.

 

[15] 50 CFR 402.13, 74 FR 20423 (May 4, 2009) as amended at 84 FR 45016 (Aug. 27, 2019)

 

[16] 50 CFR 402.14, 51 FR 19957 (Jun 3, 1986) as amended at 54 FR 40350 (Sept. 29, 1989); 73 FR 76287 (Dec. 16, 2008); 74 FR 20423 (May 4, 2009); 80 FR 26844 (May 11, 2015); 84 FR 45016 (Aug. 27, 2019)

[17] 50 CFR §424.12(b)(2), 84 FR 166 (Aug. 27, 2019)

 

[18] Proposed Regulation 50 CFR §424.02 Definitions, 85 Fed.Reg. 151 (Aug. 5, 2020) comments due by Sept. 4, 2020, not yet a final rule.

 

[19] 85 Fed.Reg. 174, 55398 (Sep. 8, 2020, now extended to Oct. 8, 2020).

Commentary: When FWS lists a species, the Act requires that, to the maximum extent prudent and determinable, 16 U.S.C. 1533(a), the Secretary, acting through FWS, designate critical habitat after taking into consideration the economic impact, the impact on national security, and any other relevant impact, 16 U.S.C. 1533(b)(2).

The Supreme Court has now definitively held, to the contrary, that decisions not to exclude a particular area are judicially reviewable. Weyerhaeuser, 139 S. Ct. at 371 (noting that the challenge to the Service’s decision not to exclude a particular area was a “familiar one in administrative law that the agency did not appropriately consider all of the relevant factors that the statute sets forth to guide the agency in the exercise of its discretion”).

[20] Commentary: Proposed paragraph (d)(1)(iii) addresses impacts based on national-security or homeland-security implications identified by the Department of Defense, Department of Homeland Security, or any other Federal agency responsible for national security or homeland security. Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)), as revised in 2003, provides:

Current Statute: 4(a)(3)(B)(i) The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense (DoD), or designated for its use, that are subject to an integrated natural resources management plan (INRMP) prepared under section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.

Commentary: Section 4(a)(3)(B)(i) of the Act does not cover all DoD lands or areas that are subject to national-security concerns (e.g., activities on lands not owned or managed by DoD. When designating critical habitat under section 4(b)(2) of the Act, the Secretary is required to consider impacts on national security on lands or areas not covered by section 4(a)(3)(B)(i).

Current Statute: 4(b)(2) The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.

 

[21] U.S. Army Envt’l Command, Army Compatible Use Buffer Program, Year End Summary FY12 (2012) at 1.

 

[22] Id. at 2.

 

[23] Id. at 3.

 

[24] Id. at 29.

 

[25] Section 10, ESA

 

[26] Id. at 28.

 

[27] Id. at 28.

 

[28] Id. at 41.

 

[29] Sikes Act, Pub. L. No. 86-797, 74 Stat. 1052 (1960) (codified as amended at 16 U.S.C. § 670a (2019)). Purpose includes: (2) preserving habitat on the property in a manner that–(A) is compatible with environmental requirements; and (B)(i) may eliminate or relieve current or anticipated environmental restrictions that would or might otherwise restrict, impede, or otherwise interfere, whether directly or indirectly, with current or anticipated military training, testing, or operations on the installation

 

[30] Id.

 

[31] U.S. Army Envt’l Command, Army Compatible Use Buffer Program, Year End Summary FY12 (2012) at 4.

 

[32] Id. glossary sec. II.

 

[33] U.S. Army Envt’l Command, Army Compatible Use Buffer Program, Year End Summary FY12 (2012) at 4.

 

[34] 10 U.S.C. § 2684a(a).

 

[35] 10 U.S.C. § 2684a(b).

 

[36] U.S. Dept. of Army Regulation 200-1, Environmental Protection and Enhancement (Dec 13, 2007) glossary Sec. II.

 

[37] 10 USC 2864a(d)(4)(C) unless process in 10 USC 2864a(d)(4)(D) is followed.

 

[38] 16 USC § 670a(1)(B), 15 USC § 1533 4(a)(3)(B)(i).

 

[39] Id. para. 1-13(a).

 

[40] Id. para. 4-3(a)(5).

 

[41] Id. para. 4-3(d)(5)(n).

 

[42] 10 USC § 2869(a)(1).

 

[43] 10 USC § 2869(a)(2).

 

[44] 16 U.S.C. § 670.

 

[45] 10 U.S.C. § 2684 (hist.).

 

[46] H.R. 5515, 115th Cong. § 2827 (2019).

 

[47] Id.

 

[48] 35 Fed.Reg. 16047, Oct. 13, 1970

 

[49] H.R. 5515

 

[50] Id.

 

[51] Id.

 

[52] Id.

 

[53] Fed Reg Vol. 85, No. 196 (Oct. 8, 2020) with public comments accepted until Dec. 7, 2020.

 

Commentary: We are also proposing a section 4(d) rule. When a species is listed as threatened, section 4(d) of the Act allows for the issuance of regulations that are necessary and advisable to provide for the conservation of the species. Accordingly, we are proposing a 4(d) rule for the red-cockaded woodpecker that would, among other things, prohibit incidental take associated with actions that would result in the further loss or degradation of red-cockaded woodpecker habitat, including impacts to cavity trees, actions that would harass red-cockaded woodpeckers during breeding season, and use of insecticides near clusters. The section 4(d) rule would also prohibit incidental take associated with the installation of artificial cavities and inspections of cavity contents, unless covered under a section 10(a)(1)(A) permit. The section 4(d) rule would also, among other things, except from prohibitions incidental take associated with conservation or habitat restoration activities carried out in accordance with a Service- or State-approved management plan providing for red cockaded woodpecker conservation, incidental take associated with red cockaded woodpecker management and military training activities on Department of Defense installations with a Service-approved integrated natural resources management plan, certain actions that would harm or harass red-cockaded woodpeckers during breeding season associated with existing infrastructure that are not increases in the existing activities, and activities authorized by a permit under § 17.32.

 

[54] 50 CFR 402.03

 

[55] 50 CFR 402.02, definition of action (c)

 

[56] 50 CFR 402.01(a), 16 USC 1536 (Section 7(a) consultation)

 

[57] 40 CFR Part 230, 230.3 Section 404(b)(1) Guidelines for Specification of disposal sites for dredged or fill material, WOTUS definition in Part 120-Definition of Waters of the United States 120.2 Definitions, 33 USC 1344(b)

 

40 CFR 232-404 Programs: Definitions; Exempt Activities Not Requiring 404 Permits (refers to definition in 120.2), 232.2 WOTUS definition in Part 120-Definition of Waters of the United States 120.2 Definitions

 

[58] https://www.epa.gov/cwa-404/exemptions-permit-requirements-under-cwa-section-404 (last accessed on Oct. 29, 2020).

 

[59] 85 Fed.Reg. 22250 (Apr. 21, 2020).

 

[60] SAM-2013- 00799 William Carey University gymnasium Forrest Mississippi, SAM-2009- 01576 A & R Land Management, LLC - Petal Commercial Development Forrest Mississippi

 

[61] 2015- 00082 Robert Bruno-Clear, Grade, Excavate, and Fill for Residential -Development in St. Tammany Parish, St. Charles Louisiana Detailed Review

 

[62] https://www.biologicaldiversity.org/species/amphibians/Mississippi_gopher_frog/, Weyerhaeuser at

 

[63] https://www.nature.org/en-us/get-involved/how-to-help/places-we-protect/camp-shelby-training-site/, https://www.perc.org/2018/07/13/if-a-frog-had-wings-would-it-fly-to-louisiana/ (last accessed Oct. 29, 2020).

 

[64] MVK-2018-1019 Public Notice dated Jul 20, 2020 (Federal permit for private residence)

MVK-2019-619 Public Notice dated May 19, 2020. (Federal funding/permit for housing project)

SAM-2019-00946 AMR Proposed Discharge of Fill into 3.47 Acres of Wetlands Associated with Commercial Retail Development, Hattiesburg, Forrest County, Mississippi, dated Oct. 5, 2020.

[65] https://aec.army.mil/application/files/7715/9369/4200/CampShelby.pdf (last accessed on Oct. 29, 2020).

 

[66] Id.

 

[67] https://www.fws.gov/endangered/esa-library/pdf/esa_section7_handbook.pdf pg. 2-12 (last accessed on Oct. 29, 2020).12/18/2020