The Hogan decision, spurred by an incident on the Alsea River in Oregon where locals complained that hatchery coho were being clubbed by Department of Wildlife staff, ruled that the federal government could not impose ESA protection for wild salmon unless it protected hatchery coho in the same evolutionary significant units (ESUs). Because of the decision, the federal government decided to review the listings of 19 of the 25 different populations of West Coast salmon and steelhead that include hatchery fish. The case is currently under appeal in the Ninth Circuit Court.

TU said it fears NOAA's announcement is the "latest in an ongoing strategy" to extend the controversial September 2001 court ruling, resulting from lawsuits and political pressure from "property rights" groups, in order to strip ESA protection for West Coast salmon and steelhead.

"Wise use" property rights advocates, represented by the Pacific Legal Foundation, support the NOAA review, contending that there is no genetic distinction between steelhead and resident rainbows in the same watersheds.

"One migrates to the sea, while the other stays in the river," said Russell Brooks, managing attorney for the Pacific Legal Foundation's Seattle office.

"Although they have two different names, they are the same species. The government biologists admit that they are the same species and inter-breed." He added, "under the ESA, we should look at all of the fish in a particular geographic area, since the civil and criminal liabilities often result in drastic consequences for property owners fo take endangered species or modify their habitat."

Brooks said he will file a lawsuit challenging ESA protection for four Columbia Basin steelhead populations based on the argument that they are genetically identical to resident rainbows. He said they will give 60 day notice on the intent to file regarding in late February.

In a parallel legal action on December 11, the Modesto Irrigation District and other Central Valley irrigation districts filed a complaint for "declaratory and injunctive relief" in the US District Court that accuses the National Marine Fisheries Service with a "failure to comply" with its obligations under the ESA when it listed as threatened "(a) naturally spawning, but not hatchery, populations of rainbow trout and steelhead," and "(b) anadromous members but not resident members of O. mykiss" in certain Central Valley rives, including the Merced, Tuolumne, Stanislaus and Calaveras rivers.

The Pacific Legal Foundation has filed an Amicus Brief supporting the Modesto district litigation. "Our suit on Columbia Basin stocks will be practically the same as the one filed regarding the listing of Central Valley steelhead stocks," Brooks noted.

The NOAA Fisheries announcement, along with the litigation by the Pacific Legal Foundation and Central Valley irrigators, could have a dramatic effect on current efforts by conservation groups and the state and federal governments to restore steelhead populations throughout the West.

"The problem with lumping steelhead with resident rainbows is that that is does a tremendous disservice to the biological diversity of the species," said Lovell. "It underestimates the biological importance of both the anadromous and resident life histories in the trout's survival. If protections for steelhead are removed, a potential huge chunk of the fish population and the ecosystem would be impacted, since you could not depend on resident trout to repopulate streams with declining steelhead populations. It would leave a huge void in species diversity and the ecosystem."

Lovell emphasized that no studies conducted by private, state and federal organizations have documented the recovery of anadromous populations from resident trout populations, since the fish are often very different. "For example, the Deschutes River resident redband rainbow is very distinct from steelhead in the same river," she said.

Fisheries biologists have long been puzzled by the distinction between steelhead trout and resident rainbows that causes some but not others to leave their natal streams and spend one or two years in the ocean before returning to fresh water to spawn, while their DNA appears to be identical, according to Lovell.

Lovell said recent technologies have allowed researchers to uncover what they believe are "genetic markers" indicating a difference between the two. But even in the absence of such evidence, she said lumping steelhead in with resident rainbow trout to then conclude that steelhead are in no need of protection tests the limits of "even the loosest interpretation of the law."

Lovell said the differences between the life histories of steelhead and resident rainbow trout leave no question as to the distinction between the two under ESA guidelines.

"Scientifically, saying steelhead and resident rainbows are identical is a reach," Lovell noted. "Legally, using that conclusion to exclude steelhead from ESA protection is a joke."