Free Response to Motion [Dispositive] - District Court of Federal Claims - federal

Case 1:95-cv-00650-LSM

Document 129-4

Filed 03/05/2008

Page 1 of 7

EXHIBIT 3

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),.
1.

Case 1:95-cv-00650-LSM

Document 129-4

Filed 03/05/2008

Page 2 of 7

1

In The Matter Of:
Alfred Aloisi, et al., v.

i

The United States
i

l

Kathleen Granillo
J
i

Vol. 1, October 2, 1997

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Professional Court Reporting Service

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500 Marquette, NW, Suite 280, Albuquerque, NM 87102 119 East Marcy, Suite 110, Santa Fe, New Mexico 87501
(800) 669-9492 or (505) 843-9494

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Orginal File grlOO297.vl, 90 Pages
I

Min-U-Scrlpt(j File ID:0792355618

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Word Index included with this Mi-U-Scrp~
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. 'ine; United States

Case 1:95-cv-00650-LSM
11) IN THE UNITD STATES COURT OF FEDER CLAIMS

Document 129-4
Page 1

Filed 03/05/2008 Vol 1, Ocober 2, 1997 Page 3 of 7
Page 2

Aat.een Grao

12 No. 95-6SO
(F July 31, 1997)
(3)

(1) APPEACES
12 For the Plaintifs:
(3) FREEDMA, LEVY, KROLL & SIMONDS

(5 Pllls,
(6 vs.

(41. AlRED AlOISI, et ai.,

Attornys at Law
(4) 1050 Connic Avenue, Nortst

(7 THE UNIT STATES,

Washingon, D.C. 20
(5 BY: MR. LAWRENCE G. MCBRIDE

(8) Deten.
(9
(10)
(11)

DEPITION OF KATHlE GRAillO
Ocobr 2,1997

(6 For the Detend: (7 MS. SUSA V. COK
Atorny at Law

(12)

9:30 a.m.
50 Gold Avenue, Southwest

(B Unfed Stales Dearnt of Justic
Environmnt & Natura Resourcs Division
(9 601 Pennylvania Avenue, Noiest, Room 837

(13) (14)

Aluquerqe, New Mexico 87102

Washingon, D.C. 200
(10)

(15) PURSUAN TO THE FEER RULES OF CML PROCEDURE, th

desit wa:
(16)
(17) TAK BY: MR.

Alo Present: Mr. Alred Alisi
(11)

LAWRENCE G. MCBRIDE

ATTOREY FOR THE PLAINTIFFS
(18)

(12) INDEX PAGE
(13) KATHLEEN GRAILLO

(19) REPRTE BY: MeDssa Corra, RPR, NM CCR 1279

l2
(21)

Be & Astes, Inc.
Proesiona Court Reprting Servic
50 Marquette, Northwest, SuRe 280

(14) examination by Mr. McBrI 3 (15) REPORTER'S CERIFICATE 85
(16) WITNESS SIGNATUREJORRECTION PAGE 87
(17) (18) (19)

(2
(2)
(24)

Aberqu, New Mexic 87102

539-11 MEl

(2
(21)

l2

(2 (2
(24)
(25)

(1) KATHLEEN GRANILLO,
(2 afer havig been fist duly sworn unde oath wa

Page 3

(5 BY MR. MCBRIDE:
(6) Q: Ms. Grao, could you state and spel your nae
(7 for the record, plea? (8) A: KatJec: K-A.T-H-L-E-E-N; Grao,
(9 G-R.A-N-I-L-L-.

(4) EXMINATION

l3 questioned and testied as follows:

110) Q: And dug much of the perod we're going to be (11) tag abut, whch is 1989 though '94, your lat nae wa
(12) Mie?
(13) A: Uh-huh.
(14) Q: Could you spel tht, plea, for the record?
(15) A: M.I-L-N-E.

(16) Q: By way of openg. I'm goin to ask you a seies of (17) questions tht have to do with the procedes and policies of
(18) the Fish andW"udle Sece and the Forest Sece.And when

(19) I ask you these questions, I'm askig for your undestadig,
(2 what you thought your responsilties wer or

wht you thought

(21) the duties or resonsibilties of other offc: of the

(2 agencies Were. I'm not askig you for lega conclusions or to

(2 bind the Forest Sece to a position on a mane, but wht you
(24) thought rues meat or wht

l2 or who you thought wa responsible for a ty of action, tht

you thought

you

were supposed to

do

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hlee Grao

Case 1:95-cv-00650-LSM , 1, Ocobe 2, 1997
A: Each HCA - thes ar al set up by the ISC, and the

Document 129-4

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Page 22

Aled Aloisi, et ai, v.

r

Page 20

(Ii protect as much haitat as possible in a contiguous maer. So

,um syte is al. It's not a Forest Sece numin
ystem.1ñt wa par of the strte. They gave us a map and

12 they tred to set them up bas on wht haitat wa ther, but (3 I do't know ently wht crter but it's not strct on
(4) some caopy covege amount.

aid, "Her's the HCA and here's thei num." Q: So lookig at t2le 1 on page 6, wher it says
ilty Mie abut twth of the way down goin acoss

:10, ther is a spc deste ar
A: Right. 1ñts the num of tht parcu HCA. C: Desgnted by the integency commtte?
A: Right.
C: And when wa tht done?

is C: Is there a crterion for matag a caopy (& closu with such area, if possible, you mo'\ avoidi
(7 dituce tht would rest in a redction of caopy closu
18 A: Wel ther were retrctons on wlt we could do in

19 haitat constion area. (10) C: As state in the -

(II) A: I don't reem the exct caopy criter.'
(121 MS. COOK: If

A: Wel I don't know. I guess it wa beore we got
he opinon. I'm not sue of the exct date.

you have questions,1 ca cite you

(13) the ca tht set out the wh~le pro.
(14) MR. MCBRIDE: Okay. Eventuy we wi get
(15) ther.

Q: Okay. Right abut the sae tie?

A: Probably rit in there, beuse - yea. I'm not me of the date.

(16) C: So you mew shortly afer you got to your job there

Q: Did the crtion of haitat consertion ar have
L caopy closue constuent crite

(17) in Yre tht Lity Mie wa one of the project tht wa
(1B) included in the

JulY 23rd opinon?
edcationa exerci

A: Wel, the HCA - tht's an oversimplication.

(19) A: Yes, beus it's lited in the tales.
(2 C: Okay. Did you go though any

l1ere is a haitat component to HCA, but HCA alo have a
arger meag in the rea of constion of the owL

(21) of your own to lea more abut gien project tht wee
. l2 coer by the biologica opinon?

C: Wht is th laer me beyond?
A: Wel I don't know how detaed you wat to get iere, but -

l2 A: Yea When I got there, I re thugh the

1

C: A pargrph perps?
Page 21

(24) biologica assessment that we had sumitt andiiormtion we l2 had reeied on al the projects, you know, and tad with
Page 23

MS. COOK: Give deta.

(1) people and tred to get up to speed on al these projects.
12 C: Okay.

A: We have the SORA system spottwl haitat area.

And in tht connection, if I could ask you to

!'e SORA areas were what the Forest Sece ha been opertig mder.

(3 go back to docent 66, pleae. Doe it not have pages?
(4) A: My copy docs, hadwitten.

C: Is tht a sytem tht the Forest Sece designed,
iot the Integency Scentic Commtte? And wht we A: Right. It's a Foret Sece process. :ld there wa set up a SORA arund mown owl pais. So it wa
:)riented around the pa, and it wa set up to protet as much

is C: Wel nea to the back
(6 A: Wher do you wat to be?

(7 Q: Where the Li Mie actty is des faily
(B close to the end.
19 A: Page 29 on my copy.
(10) C: Oley.

rutale haitat for th pai.
Q: Now, did you acy crte any of those SOHA as

(11) MS. COOK: I jut numed the doents stg
(121 from the fist page, so tht's my hadwti. There's no (13) seet syst It just needed nums. (14) THE WIESS: Yea You stated frm the cover
(15) lett.

par of you duties or A: No.
C: You cae to an aiti set of maps of them?

A: Right. They wer aitig. They'e be arund for

seer yeas beore th.
Q: Okay.

(1B) MS. COOK: Yea. Stad from the coer lett.

MS. COOK: For the record, "th" beg

(17) C: As par of tht education proces, whteer, of just (IS) hag ared there with th biologica opinon in had, did
(19) you go bak and look at the biologica asment or
how the

Exit 69?

A: Yea the opinon. Th SORA syte wa beeved to
be indequate to protect the owls, which was partly

IS

I2 assemets tht the Forest Sece ha set to the Fish and (21) Wildle Sece?

strtegy cae out.An the HCA, wht they wate to do wa set aside lage area of haitat so tht the haitat would not
get ver frgmented. Fragmtation is beeved to adersey

l2 A: Wel th is the assessment tht we set.
l2 C: Yes.
(2) A: Are you tag abut the indidu- I'm not sue

afec th owl So th id of havig thes lage HCA wa to

J2 how they put th together, and I fr don't reem if we
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A.tnee Granilk
Case 1:95-cv-00650-LSM Document 129-4
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VoL 1, October 2, 199'7 Page 5 of 7
Page 26

(1) had indidu docents on each project.

12 c: I'm aski if in July of 199 you read thugh th (3) and leaed what the vaous projects wer includi exosin (4J yourse to the fact tht there wa a Lity Mie project is de her.

(1) MS. COOK: I mo~ but we just have to.1ñts

'1

12 the rues. We ca't have you tw ha convesations, so you (3 just need to conte your ats to Mr. McBride. (4) C: (By Mr. McBride) Do you reem Jim Rock?
is A: Yes.
(6 C: Would he have be With you tht day?

¡

(6) A: Yes.

(7 c: Okay. Did you diss With the Salon Raer
(81 Distrct wht pla of opetions wa inVOlved in the Lity
19 Mie COnstation, whether it wa an al-pha pla a pla as

(7 A: I re don't remem.
18 C: And do you remem somcone in the foret
19 SUPerr's offce naed Kur Marsick? And I'l gues at (10) spg, M-A-R-5I-CK. (11) A: Yes.And I don't mow if he wa there either. (12) C: Okay. Do you know why you cae? Do you remember

(10) Preousl approved Did you discss tht in any way?

(11) A: At some pOint, I don't rememb when but yes, We
(121 taed abut th project.

(13) C: And wa it your understadig tht what had been put

(141 in the COnstation request, the project, wa the soed

(13) the purose of your viit? Presly it wa not your vacation
(14) or an off day.

(15) al-pha pla which is a phr tht wa use then al-pha
(16J pla of opertions?
(17) MS. COOK: Why don't We fist;establish tht
(181 she's even head the te al-pha pla because _

(IS) A: It wa relted to th proje and trg to
(16J implement th opinon and trg to figue out wht haitat

(17) wa going to be taen just to look at the site and see where

(19) MR. MCBRIDE: Sure.

(1B) the project wa and look at the - beuse we had been tag

l2 C: Is tht a phr tht you reca With the Lity

(19) abut ths project, trg to figue out wht haitat wa beig
l2 taen and what the effects Were.
(211 C: Who is "we" tht you've been tag abut?

(211 Mie proposa
l2 A: No.

Just in rea though the docents, you

l2 kno~ th lat week But I don't reca using tht phr.

l2 the "we"?
l2 A: Wel

Who are

i
1

(24) c: Okay. Did you ever spea to - wel let's just
l2 stat from the begig here. You've met Mr.Aloisi beore

the ditrict and mys and, Ha and _

(24) C: So implementi th projet wa one of the _ wa a
l2 matt tht you specicay got inVOlved With.

(11 tody?

Page 25 .
(11 A: Yes.
12 C: Okay. And how

12 A: Yes, I have.
(3 C: OkaY.And do you reca when you may fist have met

Page 27

J

(4) hi?
(5) A: We met - we had a meetig in the forest

often or how reguly?

(3 A: I don't th tht I ca chteriz tht, unless
141 you ask me a diferent way.

(6J superr's offce. I don't reca exy when but Probaly
(7 a few month af th cae out. I don't re when.
(8) C: OkaY.And have you ever been up Eddie Gulch?

is C: Okay. Was there a specic fidig or detetion

(6J you wated to ma With your viit, then in July 199 i? Did
(7 you come to mae a fidi or to ma a determtion of some

19 A: Yes, I Went up there once. (10) C: You've been up there once? o.~y. Do you reem
(111 when tht wa?

18 kid? 19 A: Not tht I reca. We were - it wa may for me
(10) just to come se the site, since I ha not seen it before, and

(121 A: I reay don't. Sometie, you kno~ when I wa
(13) there, so from tht two-yca-or-s ticr perod I ti it

(111 to look at - since ils in an HeA and it wa a SUtale
(121 haita and it wa COnsted on as a Plaed sae, We were told (13) to get out of plaed saes in HCA to, you know _ not to

(141 wa, li, suer of '91.

(15) C: Okay. Do you rec With whom you Went on tht
(16J trp?
(17) A: I wa With Ha Frey, and we ame by

(14) offer tht ti for sae. So cven though th is a mig
(15) cl you kno~ it's a SUtale haitat question. So we were

(IS¡ Were at the cain.

and saw _ you

(16J lookig to see if there wa any way to lesse the effect on (I7J SUtale haitat
(1B) C: And wer you able to ma tht detetion?

(19) MR. ALOISI:,tJuh Kur Masick perhaps?

(2 THE WIESS: I don't remem tht nae.

(19) A: I don't remem.
l2 C: Okay. Did you, whe you we there, deelop your
(21) own View as to whether th area in Eddie Gulch fit the HCA

(21) MS. COOK: For the record, when you say "you,.

l2 you Wi have to indicate you're tag to Mr.Alois.And
l2 unortutey, we ca't let you two have conversations because

l2 criteia and wa, you know, properly deignted?
l2 A: Well the HCA is, as I sad, a lae area tht

(24) you're under oath He's rot. It's your deposition, sol2 MR. ALOISI: I neer lie.

(24) covers 20 or more pais of Spottd owl.And so in tht area, (25) there are, you kno~ 20 pais of spott owl, and so there wa
"

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Case 1:95-cv-00650-LSM
(I) C: Say it agai. The whole point of

Document 129-4
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VoL 1, October 2, 1997

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Page 6 of 7

beg ther was-

12 A: To look at how we could meet the reents of the

(3 opinon for tht project.
(4) Q: Okay. But did anyone say

(1) ther. 12 C: Would Mr. Le havc come frm the rager district, or
(3 would he have be on deta at tht tie to the _

Page 34

anyt li "M.Alois
given no

l

is does not mow tht the Uberty Mie wa't cleaed and

(4) A: No. He ha come frm the raer ditrct.
~5) C: And you say Mr.

(& jeopardy opinon in theJuly 199 biologica opinon"? Did
(7 anyone say anyt lie tht?

Alois wa ther?

(6) A: Yes.And he ha someone with hi I don't remem
(7 who.

18 A: I don't rec.
19 Q: Whose duty in the Forest Sece strctu would you
(10) understad it to be to noti Mr.Alois of

the exstence of

(8) C: Male? Feme? 19 A: Male.
(10) C: Is Tom Fero a nae tht sounds right?

(11) the biologica opinon?

(121 A: The distrct.

(11) A: I reay don't remem who it wa.
1121 C: And wa any wrtt recrd made of th meetig?

113) C: Did you ase tht ha be done, or did you not
(14) even th abut tht?
-1

115) A: I assued it had be done. II6) MS. COOK: I beev Mr.Aloisi wa prest

(13) A: I don't mow. (14) C: Is it policy for the forest superr to have a

(15) memo to the fie or a wrtt recrd of meetigs with pertees
(16) and applicats and the li when they meet with her? (17) A: I don't mo\v (18) C: You did not ma a wrtt record of th meetig?
(19) A: No.
(2) C: And you don't rec if anyone ele did?

(17) duing some of her viit at the tie. You mit wat to
,1

(18) exlore tht beore you leave the area. (19) A: And I beeve in the forest superr's offce
!2 meetig we ta abut the opinon.

(21) C: And when do you beeve tht wa? Ealier or beore
l2 or af the site vit?

(21) A: I don't remem.
l2 C: And wha do you re the topic of dission

l2 A: I beeve beore.

J
J

(24) MR. MCBRIDE: Let's go off the record for just a
l2 seond If you wat to ta a bre you're wecome to tae a

(2) beg?
(24) A: Wel we wee trg to exla to Mr.

(25) wa going on with the projec why he couldn't stat on the _

Aloisi wht

(1) brea
12 MS. COOK: You wat a few miutes?
(3 MR. MCBRIDE: Yes, a couple of miute.

Page 33
Page 35 (1) and we taed abut the arcologica sueys tht were sti
(2) needed.
(3) C: Was Mr. Rock ther?

j

(4) (A short reces wa ta.)
is MR. MCBRIDE: Ba on the record.
(6) C: (By Mr. McBride) Ms. Grao, beore we broke, I

(4) A: I don't remem. We ta abut _ I know we
(5) tad abut wht wa going on with the opinon.

1

(7 asked you if you - wel I'm not su wht my queson wa.
(B) You indicate tht you may have met with Mr. (9 at some tie other th up at Eddie Gulch in

(6) Q: Wht wa going on with the opinon at tht point?
I7 A: Wel we had - acty, we ha the opinon back
(8) since tht

Aloisi
JulY of '91.

July or whenever it ca out.And what we were

i

(10) A: Right.As I sa beore, we had a meetig in the

(9 watig on, as I rec wa Mr.Aloi sti did not have an
(10) approved pla of opertions.

(11) forest superr's offce. (121 C: And do you re when tht wa?
113) A: No. I beeve - I know it wa beore I went out in
I14) the field to the site

(11) C: So th wa not abut the opinon, but abut wht?
(121 Envionmenta asents or abut - I mea wht, then

(13) needd to be done?

(15) C: And do you re who el wa ther?

(14) A: Wel there wa a queson of the archeologica
(15) suey work and providig more deta on the - a rea pla of
(16) opertions tht lad out the whole project, as I reca.
approva of

(16) A: Wel I th th point of the meeti wa,
117) Mr.Aloisi wa wondeing what was going on with

118) project and wate to ta to the fores superr abut it,

his

117) Q: Could you tu to doen 71, plea? Have you

lID) so it wa in the forest superr's offce.
(2 C: We're tag abut Yreka

(18) reved th dot in prearon for the deposition? .
(19) A: I don't th I've se th one. No, I have not. .

not abut the rager

(21) ditrict.

!2 C: You wat to ta a look at it? And my question is
(21) whther you saw it bak in 199 or rec ever havig seen it

l2 A: Right, YrelcAn I don't reca everne tht wa

l2 there, but the fores supersor _
(24) C: Is tht Bar Holder?

(2 beore.

121 A: I don't reca havig seen it beore.

l2 A: Bar Holde, Ha Frey. I beeve Mi Le wa

(24) C: Could you rea the fist pargrph or'amize
l2 yourse at lea With wht it's lUut?

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Case VoL 1, October 2,1997 1:95-cv-00650-LSM

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Page 38

A.ea Aloisi, et at" v,,

(I) (le witnes complies.)
(2 Q: From your understadig of the

(1) Q: The fist pargrph is my focs.

July 1990-

(3) A: I'm sti n:di. (4) Q: Al rit. I'll step ba and you ca fi
(5) A: Okay.
(6 Q: In lit of the

(2 A: Okay.

(3) Q: Th is the sae problem here. The Fort Sece

(4) Wl followi the Integency Scentic Commtt reort
(S isn't tht wht you've sad?

July 199 opinon tht we di

(7 beore wht would 'the forest h2ve be wati for frm the

tBI Fish and Wildle Sece at th point? A report not
(9 scc:ed to be ised unti Septc:? Wht might tht have
10) been?

l& A: Right. (7 Q: Wht, then are they watig for, or wh
(B inormtion do they nee beore thy ca apply the Integency

(9 Scentic Commttee report to a pla of opertions?

11) A: I'm not su. 121 Q: Wer you awae duin tht period tht there wa any
13) futher consutation or issue with the Fish and Wildle 14) Sece?
5) A: Wcl we - I'm not sue. We had deags with the
6) HCA. The Forest Sece intiy adopted the strtegy and

(10) A: Wcl agai I th tls relte to our diction
(11) to get out of plaed ti saes in HCA.And, you mow;
(12) yes, Mr.A1oisi's project is a mig cl but it involved,

(13) you knoW; remova of ti, and we conste on it as tht

(14) part of the project. But sice it is a mig cl we ca't
(15) have hi - I mea the mie is there. TIt's where the mie

'7) we had to implement the ISC strtegy, wlch sets up the HCA.

(16) is, so how do we tellu to go ahea with hi project and not
(17) be in confct gettg out of plaed saes in an HCA? And I

8) And I don't reca h2vi to go to Fis and Wildle Sece. S) I don't remen. But we did have to tr to meet those
0) reqements of gett out of plaed saes tht I mentioned

(18j beleve we had asked the regiona offce who, I beeve, asked (191 the Washigton offce wht we're suppose to do to reconcie
l2 mig cl with the HCA -ad the strte.

11 beore.

21 Q: Could you look at the second pargrph as wcl

(21) Q: The forest superr's offce wa involved in tht
(2 refer or request for inormtion?

3J plc:?
4) A: Okay.

(2 A: I beeve so.

S) Q: And the la setece there, wht might tht be
Page 37
1) tag abut, "I light of your widle biOlogit,. just from
1) the forest and knowig abut the

(24) Q: And you were goin to wat for th beore approvi

\

l2 or reauthorizg Mr.A1ois to undc operons?
Page 39

(1) A: Yea because in orde to implement the strtegy, we
(2 would have to say, "No, you ca't do your projec.

JulY 199 opinon?

l) MS. COOK: Excuse me. Could you mae your

I) question more prc:? Because if you're askig her to

l3 Q: Didn't you get a nc;jeopardy opinon from the Fish
(41 andWildle Sece in

;¡ specute on ~t tht lett mea on a lencr tht she's
ij never seen beore and she didn't write I don't know if tht's ~ proper. But if you have a specc inqui -

JulY of 199 on the project?

(S A: Yes.

(6) Q: Wht, then, did you additionay nee in orde to
(7 alow it to go forwd without jeopardy?

ij Q: Wht fidis would anyb have been wati for at
ij tht tie?
ij A: I'm not su wht they're referenci ther.

(B A: Wcl the opinon on the efec on the owl is
(9 dierent th implementig the ISC strtegyThe opinon is,
(10) you knoW; wht is the efec of th proje on the spncd

I) Q: Okay. Was it your undestadi, du th peod ~ of ti or when you ca to your site 'rt, when you cae to
L Ed Gulch tht Mr.A1ois W2 watig for word on how Ute ) owl afect hi opetion beore he completc the

(11) ~wI and here's how we th you ca mitiga efec though

(12) those reanale and prudet meaes.The constion (13) strtegy is a policy tht we adopte and it says in there, get
(14) out of plaed saes.
(15) Q: Okay.
(16) A: You knoW; they're relte but theyre not the sae
(17) U1g. So we, you know, have a confct there.

) archlogial work

i A: I don't re.
I Q: Okay.You don't ever rec diing tht stte

I of afs, watig to do the areologial work unti one
i mows wht the owl'impacts on the opertion are?

You don't

I ever rec dissing tht with anyb from the ditrct
I A: No.

118j Q: Were you involved in 1991 in the propod (19) designtion of critica haitat for the spott owl?
l2 A: Could you be more specc in wh you mea by

I Q: Could you look at doent 75, plc:?
i (Ie witness complies.)

(21) -involved"?

(2 Q: Wcl were you parcipatig in th nue mag?
(2 Were you contributig-

Q:Aga is th :i docent tht you revewed
A: No.

(24) A: Wcl let me te you wht I did _
(2 Q: PLC:.

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