Statement of “Undisputed Facts” Disputed: Colt Summit

The legal steps on Colt Summit are going through their process. Here is the response to the “statement of facts.”

I’d like to post assertion 1 and assertion 2, and have people make their own determinations, but I don’t think that the administrative record (that they refer to) is public information. Personally, I think it would add to transparency and openness for equivalent records on both sides of litigation to be open to the public, and for the legal documents to be freely available.

Anyway, here are a couple of examples from the document:

Plaintiff’s Statement: “17. A ‘shelterwood’ cut is similar to a clearcut
with a few more trees left in place in order to create a partial canopy
cover. The shelterwood cuts will vary in size and density. M11-

Record: Shelterwood cuts are not similar to clearcuts.
“Shelterwood cuts will vary in residual size and density from 30 to
50 trees per acre and 2 to 7 acres in size. Thinning-from-below,
western larch, ponderosa pine, and Douglas-fir will be selected as
residual trees in the shelterwood areas.” M11-29:12347, A-1:14.

Plaintiffs’ Statements: “45. MDOT’s 2006 report states that lynx are
‘known to cross MT 83 around the [Summit] Divide . . . It is thought
that the reason Canada lynx may not frequently cross MT 83 elsewhere
is that most of MT 83 is at lower elevation and therefore not
surrounded by typical Canada lynx habitat. . .’ S-1:3.” “46. Recent
federal studies depict most lynx movements across Highway 83 to be
within or near the Summit Divide corridor. N1-370:27976, N1-
370:27996, N1-370:28006.”

Record: Plaintiffs refer to: N1-370:27976 (lynx points), N1-
370:27996 (dispersal paths of two lynx), and N1-370:28006
(“preliminary model” landscape scale map). The maps and
discussion in K-32:1549-1553 contain the latest comprehensive
studies of lynx in the Seeley Lake area, including location data
from all radio / GPS-collared lynx, from 2005 through 2008. The
data show very limited use of the project area by lynx, and
virtually no use in the area provisionally identified as a linkage
area in 2003. K-32:1553. They also show virtually no lynx use of
areas near or across Highway 83, where treatments are proposed.
Compare M16-39:15168 with K-32:1549 and 1552. The lynx point
map at K-32:1552 shows in site-specific detail the locations of lynx
in and near the Colt Summit project area. The 2006 MDOT
report does not include the results from these comprehensive
studies of lynx in the Seeley Lake area.


Plaintiffs’ Statement: “85. Colt Summit is likely to adversely affect bull
trout critical habitat, at least in the short term. K:29:1527.”

Record: The FWS Biological Opinion concluded “[a]fter reviewing
the current status of the Clearwater River, Rainy Lake and
Clearwater River and Lakes core area of bull trout and its
relationship to the Upper Columbia River bull trout population,
the environmental baseline for the action area, the effects of the
proposed action, and cumulative effects, it is the Service’s opinion
the actions as proposed are not likely to destroy or adversely
modify the bull trout critical habitat in the Clearwater River and
Rainy Lake.” K-29:1530.

There are 29 pages of these claims and counterclaims in the document; it gives you a flavor over the kinds of discussions involving both the physical and biological realities (e.g. where are the lynx and whether they use the area), as well as what it in the record. Worth taking a look at to get a picture of the kinds of information that judges have to deal with. We’ll be following these legal documents through time on this project.

Here is the USG rejoinder to the “undisputed facts.”

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