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Federal Agencies Seek Appeal at Ninth Circuit of Preliminary Injunction Directing Columbia/Snake River Operations for ESA-Listed Salmon by Staff Columbia Basin Bulletin, March 30, 2026

Small changes in how federal dams are operated for salmon
and steelhead protections on the Columbia and Snake rivers.

A month after a U.S. District Court in Portland issued a partially favorable ruling to plaintiffs on a preliminary injunction directing Columbia and Snake river dam operations designed to aid salmon and steelhead, federal agency defendants challenged the decision at the Ninth Circuit Court of Appeals. The defendants notified the District Court of the challenge Friday, March 27.

The challenge to the ruling came a day after U.S. District Court Judge Michael H. Simon ruled in Portland last week (March 26) that the Bonneville Power Administration has never been a defendant in the quarter century of lawsuits that have challenged biological opinions governing operations of the federal hydroelectric dams in the lower Snake and Columbia rivers and, so, the federal agency cannot ask that the lawsuit be dismissed due to lack of jurisdiction. However, it can argue its case in the Appeals Court.

Some 13 species of salmon and steelhead in the Columbia/Snake river systems are listed under the federal Endangered Species Act. Federal defendants had asked for a stay of the preliminary until they could appeal. In his Feb. 25 decision, Simon already had already said no to that, adding that it is unlikely that the defendants would win a motion for a stay in an appeals court.

The appeal to the Ninth Circuit was filed by federal defendants 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).

When making his preliminary injunction ruling, Simon granted to plaintiffs the National Wildlife Federation and others certain small changes in how federal dams are operated for salmon and steelhead protections on the Columbia and Snake rivers.

Beginning in April when spill begins in the rivers, more water will be spilled at eight federal dams during spring, summer and fall/winter to aid the safe passage of juvenile salmon and steelhead, sending more of the fish over the dam rather than through turbines.

In addition, the court ordered the federal dam operators to maintain reservoir operating levels at minimum operating pools, just as the reservoirs were operated last year. Lower reservoir levels help speed juveniles through the slow-moving pools. Both measures, the court said, are "narrowly tailored and essentially maintains the status quo."

However, the need for the injunction was evident in that federal defendants had planned to reduce, not increase, spill levels this year, and they had planned to raise reservoirs to a higher level than last year when needed, in contrast to the lower reservoir levels proposed by plaintiffs, according to the court's reading of the draft federal 2026 Fish Operating Plan.

(See CBB, February 27, 2026, 'Dire Situation These Species Are Facing:' Court Oks Partial Approval Of Injunction For Columbia/Snake River Dam/Salmon Protection Operations, Columbia Basin Bulletin)

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.

The plaintiffs in the case have alleged violations of the federal Endangered Species Act regarding the management of salmon and steelhead in the rivers. Simon said 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.

"Now pending before the Court is Defendants' motion to dismiss the entirety of this lawsuit," Simon wrote. "Defendants argue -- for the first time -- that, after 25 years and all the effort that has been expended, this Court lacks subject matter jurisdiction."

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 the2020 Record of Decision and acts and omissions of the Corps and BOR violate NEPA and the Administrative Procedure Act, ("APA") and that the 2020 ROD also violates the Endangered Species Plaintiffs also asserted that the 2020 BiOp violates the APA and ESA Plaintiffs sued only NMFS, the Corps and BOR, however, and explained that "BPA is not named as a defendant . . . because jurisdiction to review final action by BPA lies in the Ninth Circuit."

"Substantively, the agencies could not--and did not--act jointly because they do not share a common source of statutory authority to perform final agency action," Simon wrote in his decision. "The 2020 ROD reflects and confirms this reality by containing separate decisions by each agency.

"Thus, although BPA's final agency action ("taken pursuant to the Northwest Power Act") may only be challenged in the Ninth Circuit under the Act's exclusive jurisdiction provision, the Corps' and BOR's final agency actions (taken under other legislative grants) may properly be challenged in this Court, as they have been for the past 25 years," Simon concluded.

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. Defendants are the U.S. Army Corps of Engineers, Bureau of Reclamation and NOAA Fisheries.

Related Pages:
Judge Denies Feds' Attempt to Dismiss Revived Lawsuit Over Columbia Basin Salmon Protections by Alanna Madden, Courthouse News Service, 3/26/26
'Dire Situation These Species are Facing:' Court OKs Partial Approval of Injunction by Staff, Columbia Basin Bulletin, 2/27/26
States, Tribes Get Partial Victory in Columbia River Basin Salmon Battle by Monique Merrill, Courthouse News Service, 2/25/26
Judge Eyes Interim Dam Changes in Revived Columbia Basin Salmon Fight by Monique Merrill, Courthouse News Service, 2/6/26