The time is likely not ripe to call on independent scientists to evaluate whether a new federal government plan for the Columbia/Snake river hydro system is adequate to avoid jeopardizing the survival of salmon and steelhead stocks listed under the Endangered Species Act.

But -- if at the end of legal arguments now just beginning -- that plan is judged legally flawed, independent scientific advice could come in to play, U.S. District Court Judge James A. Redden said in a Monday letter to litigants. The judge's missive outlines what he would like to discuss during an Aug. 21 status conference regarding two new challenges to the NOAA Fisheries Service's 2008 Federal Columbia River Power System biological opinion.

NOAA completed the document May 5, ending a 2 ½-year remand ordered by the court. Redden in May 2005 declared the 2004 FCRPS BiOp illegal and told NOAA to develop a legal plan. That remand order required that involved federal agencies collaborate with basin states and tribes during the remand.

The 2004 BiOp had replaced a document completed in 2000. It too was declared legally deficient by Redden.

BiOps are required under the Endangered Species Act to determine whether federal "actions" – in this case federal dams' existence and operation -- jeopardize the survival of listed species. The 2008 BiOp, which includes a variety of system and off-site mitigation actions intended to improve fish survival, determined that the projects do not imperil 13 basin salmon and steelhead stocks.

A coalition of fishing and conservation groups in July and the state of Oregon this month challenged that conclusion, filing legal complaints that say the new fish protection strategy represented the status quo, providing no more help for salmon than past plans that had been declared inadequate.

The coalition led by the National Wildlife Federation and Oregon filed a request for a status conference to discuss, primarily, the feasibility of bringing in independent scientists.

"NWF and Oregon believe that the use of these experts would be appropriate and could be structured consistent with the requirements for judicial review of the 2008 FCRPS BiOp as well as any request for injunctive relief," according to the July 22 request.

In a July 25 filing with the court, federal attorneys argued against a status conference, and against the use of independent scientists.

"Convening an independent science panel now will add time to an already-constricted schedule, negates three years of collaborative work, and duplicates previous scientific review," according to the U.S. Department of Justice brief. It also said that the law requires deference to the science of the expert agency – NOAA's Fisheries Service – that created the new strategy.

Redden in a July 30 order decided to convene a status conference. The follow-up letter this week set the stage for discussions.

"I share Federal Defendants' concern that appointing an independent scientific panel to 'review of the merits of the 2008 BiOp' before or during summary judgment might 'run afoul of established record review principles,'" Redden said, quoting language from the July 25 federal protest. "Such independent scientific review could also raise serious questions of fact, which might preclude summary judgment."

"Additionally, an independent scientific review at this stage of the proceedings would present numerous procedural and practical difficulties," Redden said. The judge has adopted a proposed briefing schedule for the lawsuit that would begin in September and conclude with oral arguments in early December.

"Nevertheless, I would like to hear Plaintiffs' and Oregon's proposals for such a review," Redden said of next week's conference. Independent scientists could eventually become involved, he said.

"I have made clear that if I find that this biological opinion is legally flawed, I may not remand it to the Action Agencies. Instead, I may vacate the biological opinion and enter orders of preliminary and/or permanent injunction, as may be necessary," Redden wrote.

"In fashioning any potential injunctive relief, I believe the court does have the authority under Federal Rule of Evidence 706 to seek independent expert advice regarding the feasibility and efficacy of additional or different mitigation measures to assist listed salmon and steelhead migrating through the FCRPS," according to the judge's letter.

"Indeed, during injunction proceedings related to the defunct 2004 BiOp, the government seemed to acknowledge that the court could appoint an independent scientific panel to assess the science and efficacy of spill, transportation, and flow augmentation in assisting juvenile salmon pass through the FCRPS during the spring and summer," Redden said.

The Aug. 21 session will be used to discuss that possibility.

"I want to make clear that I am in no way prejudging the merits of the 2008 FCRPS BiOp and Plaintiffs will ultimately bear the burden of demonstrating both that the BiOp is legally flawed and that they are entitled to injunctive relief," Redden wrote. "Nevertheless, it makes sense to prepare for and to discuss all of our options in the event that Federal Defendants' biological opinion fails yet again."

Also slated for discussion is whether or not the court has authority to appoint an independent scientific panel to assist during settlement negotiations – in the event the new BiOp be judged flawed -- "and/or to propose additional or different mitigation measures to assist listed species?" Redden's letter said.

"Such a process might assist the court and the parties in reaching a settlement agreement, and may obviate the need to vacate the 2008 FCRPS BiOp in its entirety," Redden said.

Redden's letter noted that federal attorneys say "numerous and critical aspects of the 2008 FCRPS BiOp have already undergone independent scientific review."

"Counsel should be prepared to discuss Federal Defendants' use of the Independent Scientific Advisory Board ("ISAB")," Redden wrote, listing discussions he wants to unfold during the status conference. "Why are Federal Defendants willing to rely on ISAB's review of some issues, but not others? May the court or the parties submit additional questions to ISAB, or suggest that ISAB evaluate additional or different mitigation actions?"

For information on BiOp litigation go to www.salmonrecovery.gov