Last winter, environmental groups petitioned the Fish and Wildlife Service (FWS) to make the rabbit an endangered species. If the FWS turns down the request - or, as often happens, doesn't respond to any of a series of legal deadlines - environmental groups will probably sue to get the agency to reconsider or reply.
These suits have become a key tool for environmental groups, who say that without legal action, far fewer animals would be added to the endangered list. In California, for example, over 90 percent of the listings in the past nine years have been the result of litigation.
In March, a rider in Bush's first budget proposed to declaw these suits. The proposal would not get rid of the ability to sue - it would waive the FWS's obligation to respond to a suit within a given time. In essence, the result would be the same: the suit would become meaningless. Citizens would have no legal mechanism to force the FWS to respond to petitions.
"They can say 'We'll get to it, maybe in five years, maybe in 100 years, there's nothing you can do about it.'" says Keiran Suckling, director of the Center For Biological Diversity, a California group that has sued the FWS dozens of times. "If it actually gets enacted it could be devastating. It would leave enforcement entirely at the discretion of the Secretary of the Interior. Leaving it in Gail Norton's hands is something we are not comfortable with."
Secretary Norton once argued that the Endangered Species Act was unconstitutional. During her confirmation hearings, she promised to uphold the law as it was written.
"The proposal will dramatically reduce the number of species that are listed," says Mike Senatore, a lawyer with Defenders Of Wildlife, a group that has successfully sued for several animals, including the XXX and the XXX. "It will all but guarantee that any species for which there is any political controversy will never be listed. Secretary Norton will not need to make a decision not to list. All she'll have to do is fail to make any decision. She could just sit and do nothing and we couldn't do anything."
The FWS argues that it is overwhelmed with endangered species suits, and says the ban will give it breathing room to focus on species that really need help. The agency does spend a lot of time in court. Right now, the FWS faces 31 suits over listing species and setting aside habitat; it has been notified that 35 more are on the way.
The FWS says that money spent responding to these suits could be used instead on studying and saving animals. "Instead of professional wildlife biologists telling us what to save, its judges an lawyers. It's whoever can get to the courthouse fastest," says Fish and Wildlife spokesman Hugh Vickery. The debate has been going on for years. Last October, the Clinton Administration put a temporary moratorium on new listings so that the FWS could work through some of the backlog.
But the new proposal goes much further, and furious environmental groups say it effectively removes the public from the process. They depict the FWS not as a beleaguered defender of endangered creatures, but a politicized bureaucracy that often neglects its responsibilities, particularly when those duties engender controversy.
"My first choice is not to sue, my second choice is not to sue," says David Carle, head of Conservation Action Project, a New England group that petitioned to save the New England Cottontail. "It is not my goal in life to sue to protect species. The problem is that the agency is not responding to the crisis of extinction. By suing we are following the law. We are not a renegade outlaw group."
The issue, Carle says, is not that there are too many suits, but that they work too well: "The lawsuits do their job, that's why they want to get rid of the ability to sue."
The New England cottontail is just the sort of animal that might need legal help. As Carle notes, rabbits in general are not the most charismatic creatures. "It looks like a bunny," he says. "People think 'a bunny is a bunny.'"
The fact that rabbits are famously procreative doesn't help matters either. The New England Cottontail's problems began in the thirties, when hunters introduced a cousin, the Eastern Cottontail, into the region because they thought it would be easier prey. The newcomer turned out to be a bit hardier and more aggressive, and has pushed the New England cottontail out of many areas. (Ironically, it is still legal to hunt New England Cottontails.)
But the bunny's biggest problem has been loss of habitat. It thrives in open fields and grassy areas, and loves abandoned farms. As these areas have become suburbs, the creature has been squeezed. Over the past 70 years, it has lost more than 75 percent of its habitat.
The rider, which will probably come before Congress in September, applies not only to future litigation, but to any unsettled suit. Among the animals who could lose out if the rider passes: the Canada lynx, whose listing would infuriate the logging industry (the animal dislikes roads); and the Mississippi Gopher frog, which lives in only one pond in southern Mississippi. (The area is in the throes of a drought, and last week the National Guard was called in to fill the pond with water so that the gopher tadpoles would survive.)
Both sides agree that the issue comes down mostly to money. The FWS says it doesn't have enough to protect truly needy species and at the same time carry out court orders. Environmental groups agree that the FWS is underfunded, but say it should ask Congress for a larger budget. Vickery laughs ruefuly at this, noting that in six of the past seven years, Congress turned down requested increases in the listings budget.
Even some opponents express backhanded sympathy for the agency's plight. "They get besieged on all sides. They get screamed at by the environmentalists, and whenever they make a move in the direction of conservation, they get screamed at by congresspeople, who are listening to industry," says Eric Glitzenstein, an environmental lawyer who has brought several suits against the FWS. "After years of getting screamed at, you get to be afraid of your own shadow. Which is what has happened."
But Suckling remains steadfast: "The Fish and Wildlife Service is so malfeasant that the federal courts have become an integral part of the system. Without a court order a species will not get listed. That's the bottom line. That's why George Bush wants to get rid of the suits."
Written by David Kohn; © MMI, CBS Worldwide Inc. All Rights Reserved