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Agencies Ask Appeals Court to Throw Out Injunction Guiding Spill for Salmon at Columbia/Snake Dams by Staff Columbia Basin Bulletin, April 10, 2026

Absent a stay, the defendants said, the elevated spill levels of the preliminary injunction
would increase the cost of electricity, reduce grid stability and increase the risk of blackouts.

Federal defendants in a long-running case in U.S. District Court challenging NOAA Fisheries' biological opinion governing operations to prevent harm to salmon and steelhead at Columbia River federal hydroelectric system of dams raised the case to the Ninth Circuit Court of Appeals in late March.

This month the federal defendants petitioned the Ninth Circuit to stay a preliminary injunction approved by District Court Judge Michael H. Simon that requires the U.S. Army Corps of Engineers to provide more spill at Lower Snake River and lower Columbia River dams.

In their request to stay Simon's preliminary injunction until it can be ruled on in the higher court, the defendants said that the lower court "in this 25-year Endangered Species Act Case (ESA) has effectively designated itself superintendent of the 14 federal multi-purpose dams on the Columbia River System (CRS) that generate substantial hydroelectric power."

They demanded that this "judicial overreach must stop."

"Despite incalculable federal resources spent conforming CRS to the needs of fish, agriculture, businesses, tribes, and residents, the court continues to issue injunction after injunction, specifying the details of dam operations and water flow, which in turn control energy generation for much of the Pacific Northwest," the April 7 appeal said. "The region is already at high risk of an energy shortage, and the district court's current injunction substantially increases the risk of catastrophic harm to the public through blackouts."

According to federal lawyers, plaintiffs National Wildlife Federation et al had stipulated in a 2023 agreement to spill levels less than what they are demanding now in the preliminary injunction. That agreement was rescinded by the Trump administration.

"Plaintiffs now insist that substantially higher spill -- particularly in August, when the agreement allowed reduced spill -- is crucial to avoid imminent harm to fish, despite agreeing until 10 months ago that less spill protected the fish just fine."

According to the defendants' appeal, the preliminary injunction "mandated longer durations of spill at all eight dams (24 hours, versus 16 hours contemplated in the 2020 Record of Decision); reduced operational flexibilities (including fish transport at one dam, which results in more returning adults annually than spill); and, despite a lack of evidence that it would meaningfully benefit listed species, extended spill through the entire month of August, when water levels will be at their lowest and air temperatures at their highest."

"The district court took Plaintiffs' bait: hook, line, and sinker," defendants filing at the Ninth Circuit say in asking for a stay of the preliminary injunction. "The court entered a "particularly disfavored" "mandatory" preliminary injunction that blindly adopted Plaintiffs' newly preferred spill levels. Once again asserting itself as overseer of operations, the court mandated high, continuous spill at 8 dams on the Columbia and Snake Rivers including -- most problematically -- elevated spill through August and September."

Absent a stay, the defendants said, the elevated spill levels of the preliminary injunction would increase the cost of electricity, reduce grid stability and increase the risk of blackouts.

Federal defendants had asked Simon for a stay of the preliminary injunction until they could appeal the decision to the Ninth Circuit, but in his Feb. 25 decision, the judge had already said no to that, adding that it would be unlikely that the defendants would win a motion for a stay at the appeals court.

Federal defendants are the U.S. Army Corps of Engineers, U.S. Bureau of Reclamation, U.S Fish and Wildlife Service and the National Marine Fisheries Service (NOAA Fisheries).

Plaintiffs in the lawsuit are NWF, American Rivers, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Sierra Club, Idaho Rivers United, Northwest Sportfishing Industry Association, NW Energy Coalition, Columbia RiverKeeper and the Idaho Conservation League.

The plaintiffs in the case have alleged violations of the federal Endangered Species Act regarding the management of salmon and steelhead in the rivers. Some 13 species of salmon and steelhead in the Columbia/Snake river systems are listed under the federal Endangered Species Act. Simon had said in a March decision that the case "appeared to be heading toward a final resolution. At the parties' request, the Court stayed this lawsuit after the parties had signed a Memorandum of Understanding," an agreement dissolved by President Donald Trump, June 12, 2025. The court lifted the stay several months later.

The MOU, signed in December 2023, known as the Resilient Columbia Basin Agreement (RCBA), was to be effective through 2028 and was designed to restore Columbia River basin salmon and steelhead runs to "healthy and abundant levels." Simon had approved a stay in the original and long-running lawsuit that challenged NOAA Fisheries' 2020 biological opinion and U.S. Army Corps of Engineers' Environmental Impact Statement and Record of Decision as long as the agreement was in place.

The history of lawsuits by NWF et al is long. Plaintiffs filed their eighth supplemental complaint Jan. 20, 2021, which at the time was a two-decade long environmental lawsuit over the management of the Columbia and Snake river systems and their impact on Oregon's salmon and steelhead populations.

On March 4, 2021, Intervenor-Plaintiff State of Oregon filed its fifth supplemental complaint. On August 18, 2021, the NWF Plaintiffs filed their corrected eighth supplemental complaint, alleging that the 2020 Environmental Impact Statement and the 2020 ROD and acts and omissions of the Corps and BOR violate the National Environmental Policy Act and the Administrative Procedure Act, and that the 2020 ROD also violates the ESA.

In that BiOp, NOAA Fisheries had concluded that the proposed action -- "to continue operating and maintaining" the Columbia River hydro system for "flood risk management, navigation, irrigation, conservation, and all the other purposes established by Congress, along with extensive conservation measures -- was not likely to jeopardize the continued existence of ESA-listed species," the defendants' appeal says. In their appeal to the Ninth Circuit, defendants say they are likely to succeed in this appeal, contrary to Simon's assessment that the appeal would fail. They said the District Court lacks jurisdiction because the Northwest Power Act "vests jurisdiction exclusively in this Court."

The jurisdiction debate hinges on whether the Bonneville Power Administration was a part of the most recent lawsuit (or any of the lawsuits going back 25 years). BPA had petitioned Simon's court to dismiss the lawsuit due to a lack of jurisdiction. Although BPA had not been named by plaintiffs in the lawsuit, the federal agency said it was "inextricably intertwined" with the other federal defendants.

Simon denied BPA's request, saying that the Motion, "filed nearly five years after Plaintiffs' supplemental complaints, Defendants argue that this Court lacks subject matter jurisdiction because Plaintiffs' challenges to the agencies' ROD and NMFS's BiOp implicate the Northwest Power Act's exclusive jurisdiction provision. Alternatively, Defendants argue that Plaintiffs' suit challenges final agency actions that are "inextricably intertwined" with BPA's final agency actions. Neither argument is persuasive."

With passage of the Northwest Power Act, Congress gave the Administrator of BPA the authority to set BPA's energy rates and it also established the Pacific Northwest Electric Power and Conservation Planning Council (now the Northwest Power and Conservation Council) to "develop and adopt . . . a program to protect, mitigate, and enhance fish and wildlife . . . on the Columbia River and its tributaries," "[b]ecause of the unique history, problems, and opportunities presented by the development and operation of hydroelectric facilities," Simon explained in his decision. "To ensure that power prices maintained relatively consistent among the states, Congress prohibited Federal district courts from reviewing certain BPA actions taken under the Act." That oversight -- the Act's exclusive jurisdiction provision -- was given to the Ninth Circuit Court of Appeals.

In addition, the defendants said in their appeal that the government fully complied with the ESA, that NOAA Fisheries had prepared a 1,400-page BiOp that had considered each of the district court's concerns.

"The district court seems to have simply ignored the agency's reasoning, improperly substituted its own views for the agencies' predictive scientific judgments, and plainly failed to apply the "doubly demanding" standard for a mandatory injunction, which requires Plaintiffs to "establish that the law and facts clearly favor" their position," the defendants wrote in their appeal.

The list of defendants' complaints about Simon's rulings continued, saying: On irreparable harm, the court stated that general threats to salmonids were "dire and immediate," despite Plaintiffs' 2024 stipulation to lesser spill for 10 years, the appeal says.

"The court also agreed with Plaintiffs that the public interest favored the injunction, ignoring dozens of agency expert declarations that the injunction would harm other endangered species like bull trout," the appeal said. "Finally, the court stated that "the public interest always weighs in favor of protecting endangered species," ignoring "power system reliability, flood risk, transportation, irrigation, and the availability of water supplies and clean drinking water."

Defendants said that a stay is required to avoid irreparable harm to the electric grid and the public.

"Absent a stay, irreparable harm will occur during the pendency of this appeal because the injunction substantially increases the risk of blackouts -- which cause death, human suffering, and substantial economic damage -- and increases the cost of electricity," the defendants wrote in their appeal.

As of April 9, also declaring that they will join the appeal in favor of the defendants are the Inland Ports and Navigation Group and the National Rural Electric Cooperative Association.

Related Pages:
Opinion and Order by Judge Michael H. Simon, February 25, 2026