"Independent" scientists will remain on the sideline as attorneys plunge into arguments this autumn over the legality of the latest federal Columbia/Snake river hydro system salmon protection plan.

Judge James A. Redden on Thursday denied a request than an independent panel be formed immediately to provide its view on the soundness of elements of the plan's complicated scientific underpinnings.

"Let's just do it, brief it. I'll read it," hear oral arguments and render a decision, Redden said during a Thursday debate about the legality, practicality and usefulness of bringing independent science in the legal process.

"I want this BiOp to pass," the judge said of the May 5, 2008, biological opinion issued by NOAA Fisheries Service. He has twice in the past declared NOAA Federal Columbia River Power System BiOps invalid and ordered involved federal agencies to produce a legal document in court-monitored remands. BiOps are required under the Endangered Species Act to determine whether federal "actions" jeopardize the survival of listed species.

The new BiOp includes hydro system operational measures and passage strategies aimed at improving fish survival. It also outlines numerous off-site actions, such as tributary habitat restoration, intended to increase survival of 13 listed salmon and steelhead stocks.

In this case, the action is the federal hydro system operated by the U.S. Army Corps of Engineers and the Bureau of Reclamation. NOAA's new BiOp was developed by NOAA during a 2 ½-year consultation with federal action agencies, which includes the Bonneville Power Administration, and in collaboration with Columbia basin states and tribes.

The new document, which replaces the 2004 version, has been challenged in U.S. District Court by a coalition of fishing and conservation groups and by the state of Oregon. They say it provides even less protection than the 2004 strategy.

In ordering the remand, and recently, Redden has said that he's not likely to give the federal agencies another chance to fix a flawed BiOp themselves.

"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 said in an Aug. 7 letter to litigants. On Thursday he called that statement not a threat but an idea.

"If I find the BiOp invalid, at that point we may want to discuss what to do -- what do you think we should do now?" Redden said.

If he determines once again that the BiOp is legally flawed an independent science panel could well be assembled to help evaluate options – potentially in injunction proceedings or settlement negotiations – for improving conditions for fish.

"I'm pretty certain I can do that," the judge said of rules and precedent governing the court.

Meanwhile, the established briefing schedule requires that the federal government file an administrative record of its BiOp decision-making process with the court by Sept. 1. The coalition – led by the National Wildlife Federation – and Oregon have until Sept. 12 to file requests for summary judgment.

The plaintiffs' complaints say they want the BiOp vacated and replaced with a strategy that complies with the ESA. They have also indicated they may from time-to-time seek preliminary and permanent injunctive relief "as may be necessary to protect the environment and ESA-listed species."

The briefing sets Oct. 1 as the deadline for Earthjustice and Oregon to file injunction requests.

The back-and-forth briefing would conclude by the end of November with oral arguments sometime in December, according to the schedule adopted by the court.

The coalition, represented by Earthjustice, has in the past sought and received injunctions requiring that dam operators to spill more water to aid in fish passage. Redden has in the past denied requests for changes in flow regimes in BiOp prescriptions.

On Thursday Redden heard three hours of argument about the legality of employing independent science in the proceedings, as well as criticism and praise for the new BiOp.

The federal Administrative Procedures Act allows the judge only to review the BiOp itself and that administrative record, according to Coby Howell of the U.S. Department of Justice.

An independent scientist or panel of scientists used in either the summary judgment proceedings or injunction proceedings would "opine or answer those narrowly framed questions. That is new science," Howell said.

Injecting scientific opinion beyond the record is unacceptable in summary judgment proceedings, which is why examples of science panels being employed cannot be found in case law, he said.

"The reason that we can't find any case law on this is because it is impermissible," Howell said.

Earthjustice attorney Todd True said the absence of case law means little in this issue.

"It only means that it hasn't been done before. It doesn't mean it's wrong," True said.

He said having access to an independent science panel could assist the court in answering specific questions about the BiOp's scientific analysis and would not be "an open ended invitation to an expert to second guess the science or amend the biological opinion."

A panel's use in injunction proceedings is well within the court's discretion, he said. Redden agreed but denied Earthjustice's request that a panel be established within the next month to, potentially, provide input on spill and flow injunction requests likely to land in court by Oct. 1.

Howell and others urged the judge to move ahead with the briefing, and put the independent science issue to rest.

"We sat down with the sovereigns and discussed the science" during the extensive collaboration, Howell said. And while consensus was not reached on every issue, "by and large there was agreement on it."

"We want to tell our side of the story," Howell said of the planned legal defense of the BiOp.

"This region has been arguing about the science for years," including during hundreds of collaboration meetings, said Michael Grossman of Washington's Attorney General's office. "At some point it's time to call the question on this."

"We think the BiOp is supportable. We want to brief this," Grossman said.

Attorney Howard Funke said that the Spokane Tribe has long argued for a legitimate and transparent views on the status of fish runs and their needs.

"The tribe is concerned that has not occurred" through the collaboration as the federal attorneys attest, Funke said. "We don't believe the federal government honored that agreement to find the best available science."

"The tribe believes independent science is imperative," he said.

Redden acknowledged the effort put into the collaboration and BiOp.

"It's a tough job – the BiOp. You've done a good job," Redden said. "I don't know if it's enough."

The judge will be expected to make his determination following oral arguments.

For more information and documents regarding BiOp litigation go to www.salmonrecovery.gov