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Stay Pending Appeal Still Uncertain in CRSO Injunction Appeal by K.C. Mehaffey NW Fishletter, July 7, 2026

Potential hearing dates are
Oct. 19-23, Oct. 26-30 or Nov. 16-20.

The 9th U.S. Circuit Court of Appeals has offered few clues about whether the U.S. Department of Justice will be able to head off impacts of a preliminary injunction that increases spill at eight dams in the lower Snake and Columbia rivers this summer.

But recent notices from the court made two things clear: The appeal will not be heard until this fall, at the earliest; and the panel of three judges who will hear the case will determine whether to put the injunction on hold until after the case is decided.

DOJ has been pushing the court to "expeditiously grant" its April 7 motion to stay the injunction pending appeal due to the "risk of catastrophic blackouts."

Earthjustice--which represents 10 environmental groups in the case--has asked the court to disregard the request, saying federal agencies already have the ability to modify or suspend the injunction.

The injunction's order extending summer spill through the month of August has been a major point of contention between plaintiffs and defendants in the case. The issue is playing out not only in the courtroom, but also in the newly released 2026 Columbia River Basin Fish and Wildlife Program developed by the Northwest Power and Conservation Council.

The Council adopted a new F&W Program in June, but Council members could not reach a consensus and made no recommendations with respect to whether summer spill should end on Aug. 15 or Aug. 31 (Clearing Up No. 2266).

Back in the appeals court, a June 22 order says that the motions by DOJ and other parties to stay the injunction "are referred to the panel assigned to decide the merits of these appeals."

That decision was made by two senior 9th Circuit judges: Barry Silverman, who was appointed by President Bill Clinton; and Consuelo Callahan, who was appointed by President George W. Bush.

It's unclear whether Silverman and Callahan will be among the judges to hear the appeal, but the court already declined a request by Earthjustice to assign the same judges who decided prior appeals of Columbia River System Operations decisions (Clearing Up No. 2266).

A June 29 notice--in which no judges were named--informed parties that the case was being considered for the court's oral argument calendar in San Francisco in October or November, after this summer's spill season has ended.

Potential hearing dates are Oct. 19-23, Oct. 26-30 or Nov. 16-20.

Parties with conflicts were directed to consult with opposing counsel and propose alternative dates or locations and file a form with the court immediately.

The notice said dates will be assigned about 10 weeks before the oral argument hearing.