By K.C. Mehaffey
February 9, 2026

Without issuing a ruling on Feb. 6, U.S. District Judge Michael Simon said he was “tentatively inclined to deny the [federal defendants’] motion to dismiss, and to grant the [plaintiffs’] motion for preliminary injunction,” in a lawsuit over Columbia River System Operations.

Instead, he asked plaintiffs, defendants and intervening parties of National Wildlife Federation et al. v. National Marine Fisheries Service et al. [01-640] to attempt to reach agreement on as many points as possible in the plaintiffs’ proposed order for a preliminary injunction and to file a new proposed order by Feb. 20.

Simon said he will work on his decision over the next two weeks, and plans to issue a ruling Feb. 23, after seeing the new proposed order. The decision will cover both the federal government’s request to dismiss the case (Clearing Up No. 2242) and the preliminary injunction sought by 10 conservation groups and the State of Oregon (Clearing Up No. 2232).

Federal defendants—comprised of NMFS, the U.S. Army Corps of Engineers, the Bureau of Reclamation and the U.S. Fish and Wildlife Service—say the region would lose 407 aMW annually under the preliminary injunction compared to Columbia River hydro generation under the 2020 CRSO record of decision.

The Public Power Council said in court documents that the proposed injunction would result in a 1,600-MW capacity deficit and cost public-power customers $150 million a year (Clearing Up No. 2241).

During the 3.5-hour hearing, Simon asked parties about the potential for mediation while hearing arguments about whether he should issue an emergency order for increased spill, lower minimum operating pools (MOP), and a list of non-operational actions to aid Columbia Basin salmon and steelhead.

Near the end of the hearing, the judge asked all of the parties to come together on as many issues in the proposed order for injunctive relief as possible over the next two weeks.

He asked them to consider what they can live with—hypothetically—if he were to deny the defendants’ motion to dismiss the case and at least partially grant the preliminary injunction.

He said areas of agreement should be written in black print. “Where there’s disagreement on particular provisions, I’d like to see plaintiffs’ version in blue, and defendants’ version in yellow,” he said.

Simon said he also wanted input from intervening parties in the case—in different colors if necessary—and clarification on some issues raised in court, such as whether the injunction allows for variances in MOP.

“I probably will not be having further arguments on how do I decide between blue and yellow. And I might very well sort of do a baseball arbitration, and pick whichever one looks more reasonable,” Simon said.

It wasn’t Simon’s only reference to baseball during this hearing.

Pointing out the decades that this case has been in court, Simon quoted baseball legend Yogi Berra at the beginning of the hearing by saying, “It’s déjà vu all over again.”

And at the end of the hearing, he quoted Berra again: “If you don’t know where you’re going, when you get there you’ll be lost.”

He advised the parties that this is not the time to take an extreme stance on any of the provisions for which agreement can’t be reached, as he likely won’t be figuring out a middle path. “If blue is more reasonable than yellow, I’m going to take blue. If yellow is more reasonable than blue, I’m going to take yellow,” he said.

None of the parties are giving up their rights to appeal his decision, Simon said. But he also said he expects his Feb. 23 order to be followed this year, beginning with the start of spring spill March 1.

Plaintiffs, defendants and intervenors largely reiterated arguments already made in prior court briefings filed in the past few months.

Amanda Goodin, supervising senior attorney for Earthjustice, which represents the 10 conservation groups, said federal defendants want to “throw out” all of the science, standards and thresholds showing that increased spill and reduced reservoir elevations are the best tools to prevent irreparable harm.

“Instead, they want to look at whether we have a couple more fish or a couple less fish” in the system, she said.

Goodin stressed that the spring spill requested in the injunction is not much different from 2025 operations. And, she said, the level of spill in the federal government’s proposed 2026 Fish Operations Plan is lower than the level of spill that Simon ordered in 2017.

With respect to MOP, Goodin said it’s difficult to quantify the benefits to fish, but lowering reservoir elevations is a key tool for reducing juvenile fish travel times, which increases survival rates.

John Martin, senior trial attorney for the U.S. Department of Justice, countered that there’s not a linear relationship between increased spill and juvenile salmon survival.

He said that in 2024 and 2025, when the projects spilled at the highest levels ever, juvenile salmon had the lowest survival rates in the last five years. He said the plaintiffs’ argument ignores this most recent evidence on abundance.

Additionally, he said, high spill is harming Columbia Basin bull trout, which are also listed as threatened under the Endangered Species Act.

He said operations under the injunction, which combine higher year-round spill with lower reservoir levels, are unprecedented.

During arguments, Simon often interjected with his own thoughts and concerns.

With respect to spill, he told Goodin, “I’m really interested not only in what plaintiffs are asking for versus what defendants are proposing, but also how it compares to what actually happened in 2025.” He later asked about the likely effect on salmonid survival if he ordered the 2025 spill operations instead of those in the preliminary injunction.

Regarding lower reservoir elevations or MOP, he said, “Here’s my concern … From what I’ve read from defendants, and mostly from the amici supporting defendants, that would have catastrophic results for several of the amici’s agricultural operations and other needed operations.”

Simon also questioned whether some of the non-operational measures—such as hydroelectric facility repairs—are reasonable requests for a preliminary injunction as opposed to a permanent injunction to resolve the case.

During DOJ’s arguments, he commented, “[I]t’s the operation of the hydroelectric facility that’s causing the harm to the endangered and threatened species. And they’re not asking you to shut down the hydroelectric operations. They’re asking for something less than that, and that’s what makes this specific request sound more reasonable—much more reasonable than if they would have asked to shut down the entire hydroelectric operation.”

And, in response to DOJ’s concerns about how bargaining over the 2026 operations would impact a potential appeal, Simon explained his reason for asking the parties to find areas of agreement.

“It’s a partial reaction to what some of you said about wanting to ensure navigational safety is addressed, variability when need be, [and] what the irrigators’ needs are,” he said. He explained that if he grants a preliminary injunction, he wants it to cause less harm to defendants in areas where plaintiffs are willing to compromise. “I don’t want to inadvertently cause more harm than need be,” he said.

Clearing Up: Judge Urges Mediation and Compromise Prior to CRSO Lawsuit Decision