NGOs Gain Victory in Yellowstone Park Biopiracy Case

Friday, March 26, 1999

Yellowstone Bioprospecting Halted by
Judge

BY CHRISTOPHER SMITH
THE SALT LAKE TRIBUNE

Saying it represented a
"dramatic change" in policy
without public input, a
federal judge has ruled
Yellowstone National Park
must immediately suspend
all commercial
bioprospecting deals and
undertake detailed
environmental impact
studies.
The landmark decision
Wednesday in U.S.
District Court in
Washington, D.C., came in
a lawsuit filed by groups
and individuals who had
challenged Yellowstone's
secretive 1997 contract
with Diversa, a San Diego
biotech firm.
It was a major blow to
Yellowstone's ballyhooed
bioprospecting business
and could affect
commercial biotech
research on all federal
lands in the United States.
The Diversa deal allowed the company to take "raw
samples of biological
material" from Yellowstone's thermal features and
landscape, break down the
"microbial" material in a laboratory, clone the genes
and enzymes, and use the
information to create industrial, medical and
commercial products.
Because Yellowstone's microbes can survive in
extreme environments such
as superheated water or acid, their enzymes and genes
are viewed as a
potential billion-dollar gold mine which, the judge
wrote, makes biotech firms
"salivate." DNA fingerprinting, the chemical process
to copy DNA material,
was derived from a microbe found in Yellowstone's
Mushroom Pool and now
generates $100 million annually for the private
company holding the patent.
The success prompted Yellowstone to cut a deal
with Diversa, which would
pay the park royalties on any future commercial use
or product resulting from
bioprospecting in Yellowstone.
But the Diversa "cooperative research and
development agreement"
(CRADA) was negotiated by a third party and was done
without public
comment or consideration. And District Judge Royce C.
Lamberth ruled
Wednesday that Yellowstone violated the National
Environmental Policy Act
(NEPA) by neglecting to get public input.
"The future of bioprospecting on federal lands in
the United States appears
to be a work in progress, but the government as of
yet has not engaged in any
public debate on the issue nor made any definitive
policy statement through
regulations or less formal means," Lamberth wrote.
"The [Diversa contract]
marks the first time in history that an American
national park would stand to
gain financially from scientific discoveries made
within its borders."
But how much financial gain is still a secret,
with the government refusing to
disclose even to the judge how much money Yellowstone
stands to make on the
deal.
National Park Service officials indicated no
appeal was planned, although
they were studying the 41-page ruling.
"We will start NEPA compliance immediately," said
Park Service
spokesman Dave Barna. "There are still some other
issues that need to be
litigated, but we will comply with what the judge has
said."
The Edmonds Institute of Edmonds, Wash., the
International Center for
Technology Assessment in Washington, D.C., the
Alliance for the Wild
Rockies in Bozeman, Mont., and Yellowstone area guide
Phil Knight sued
Yellowstone last March, challenging the legality of
the Diversa deal.
Lamberth's ruling Wednesday rejected a Department of
Interior claim that the
plaintiffs were not injured by the deal and should
allow it to go forward.
"This issue was whether this was really a good
deal for anyone," said Beth
Burrows of the Edmonds Institute. "How can the public
conclude anything
when all this was done in secrecy?"
Lamberth found that even though Diversa
bioprospectors may be removing
just a teaspoon of water from thermal pools for
research, "the overall impact
[of the deal] is not teaspoon sized." He ruled that
the sweeping collection
privileges granted to Diversa would "constitute a
cognizable injury" to the
groups' enjoyment of Yellowstone, as does "commercial
exploitation" of park
land. The judge also noted damage caused around
thermal pools by
researchers, such as "trampled geysers."
"We are talking about the potential for for a
modern-day gold rush, and if all
these companies pour in, there are going to be
impacts to the public and the
thermal resources," said Mike Bader of the Alliance
for the Wild Rockies. "The
last thing we want to see is people in hip waders in
the thermal basins."
Lamberth dismissed the government argument that
the Diversa deal was
allowed under the Federal Technology Transfer Act
because the 2-million-acre
park is a "federal laboratory." The judge called the
government's reasoning
"absurd."
The judge also agreed with conservationists that
the deal may be a violation
of the laws that created the National Park Service
and Yellowstone.
Lamberth sent Yellowstone back to square one on
the Diversa contract,
ordering a full, public environmental review of
commercial bioprospecting in
America's first national park.
"The novel legal and factual issues raised by
bioprospecting in Yellowstone
requires an intensive deliberation by the
[government], ideally with public input,"
he wrote.
Yellowstone Superintendent Mike Finley said the
Diversa deal was done
simply to recapture potential revenue from
commercialization of park resources
that already was going on with standard
educational-research permits.
"Research permits have been issued to study
Yellowstone resources for
decades with no harm to the park and great benefit to
science," Finley said.
"Any action that limits the ability of the National
Park Service to enter into
CRADAs only deprives the parks of money that would be
used to protect park
resources."
But Joe Mendelson, lead attorney for the Center
for Technology
Assessment, said the issue is public consideration of
a radical change in national
park stewardship represented by the Diversa deal.
"This decision mandates that the American people,
the owners of the parks,
have to be consulted," he said. "It effectively
prevents the exploitation of our
national parks solely for commercial gain."