Biopiracy in Yellowstone Park

Sunday, November 9, 1997
Park Deal: Some Call It `Biopiracy'

BY CHRISTOPHER SMITH © 1997, THE SALT LAKE TRIBUNE

Hellish bubbling pools of acid-laden water and foul-smelling mud at Yellowstone National Park may harbor as much genetic diversity as a Brazilian rain forest -- a realization that has spurred a biotech gold rush.

``Bioprospectors'' are hunting heat-resistant bugs living within these pools that can be seen only with a microscope. These ``microbes'' could have commercial uses ranging from tenderizing steaks and flavoring beer to arming a new generation of chemical weapons.

Hoping to profit from the stampede, Yellowstone officials signed a revolutionary ``bioprospecting'' deal, transferring proprietary rights of publicly owned natural resources to a California company in return for fees and royalties from any commercial sales.

But documents obtained by The Salt Lake Tribune reveal park officials knew the deal they cut ``clearly favors the company.'' Yellowstone has estimated the market value of products resulting from worldwide ``microbial'' research at $15 billion annually. The royalty returned to American taxpayers from the Yellowstone deal may be as small as half a percent.

Some experts say that royalty amount is typical for bioprospecting deals in places like Iceland and Costa Rica. However, others contend that in the world's first and foremost national park, it's biopiracy.

``The best interest of the American public is not served by essentially giving away or selling at bargain-basement prices resources that are part of all our heritage to companies so they can patent them and profit from them,'' says Edward Hammond, program officer of the Rural Advancement Foundation International (RAFI), a genetic technology watchdog group. Internal memos, e-mails and reports received by The Tribune and the nonprofit Natural Resources News Service under the Freedom of Information Act show that Yellowstone National Park officials:
-- Agreed to pay $200,000 in private contributions and taxpayer funds over the next two years to a nonprofit foundation to help the park negotiate other bioprospecting deals. Since April, Yellowstone has paid the foundation $28,000 in taxpayer funds.
-- Planned to use the signed agreements to squeeze a Swiss drug giant into making a ``contribution'' to the park in return for profiting from a Yellowstone-derived enzyme extracted in the 1960s and now widely used in DNA fingerprinting.
-- Struggled to get around a historic ban on the sale or commercial use of national park resources, finally declaring that the organisms harvested and processed from the park should be considered ``research results,'' not natural resources.
-- Made sure money generated by commercial use of the organisms was funneled directly to the park, not the federal treasury, and ``with no DOI [Department of Interior] involvement.''

The agreement was signed Aug. 17 by the superintendent of Yellowstone and the chairman of Diversa Corp., a San Diego based biotechnology firm. But now concerns about whether this deal benefits taxpayers and the park have put the agreement in limbo, according to the director of the National Park Service (NPS).

``There are a lot of questions we have internally that have obviously been raised by the public as well, and we just don't have the final answer as to whether we will permit this to go on,'' NPS Director Robert Stanton told The Tribune last week.

Responds Diversa Corp. Chairman and CEO Terrance Bruggeman: ``We understood this had had an extensive internal review. However, we welcome any further review and we are fully prepared to answer any questions the director may have.''

At Yellowstone, Center for Resources Director John Varley acknowledges the agreement with Diversa is being rewritten by government lawyers and the ``final document will be somewhat different.''

``I realized when I got into this morass it was going to be controversial,'' says Varley. ``Everything we do at Yellowstone is controversial.'' The Devil's Laundromat: It didn't take a modern molecular biologist to figure out that Yellowstone National Park's bubbling pools harbored untold benefits to human kind. ``It was a small pool that would suck the water down and in a few minutes it would come gushing out again,''James Hamilton's Wife wrote in 1888 about visiting one of Yellowstone's famed thermal features. ``If you put a handkerchief in, the handkerchief would be sucked down and would come up in a few minutes nice and clean.''

Rangers quipped the pool was where the devil took in washing. Today, the same enzymes found in the heated pools are used in detergents and stain removers. It's only a fraction of what may lurk in the thousands of cauldrons, steam vents, geysers, mud volcanos, paint pots and hot springs of Yellowstone, which contains 80 percent of the Earth's terrestrial geysers and more than half of its thermal features.

Bioprospectors traditionally have hunted for new forms of microscopic treasures in tropical rain forests or arctic waters. But national parks are becoming increasingly attractive to ``microbe'' hunters because many are biosphere preserves of undiscovered resources, public libraries of genetic code that could lead to hundreds of uses. Scientists now believe there may be microscopic biodiversity in Yellowstone to rival or even surpass that of rain forests.

Unlike traditional mining, bioprospecting has minimal environmental impact, with only a small tablespoon of fluid, sediment or detritus needed to gather millions of microbes, which then can be multiplied in a ``bacterial factory'' in a laboratory.

While the public owns the Yellowstone microbe, there's a debate about who owns the resulting ``manufactured'' organism. Yellowstone and Department of Interior officials recognized their microbe proposal represented a huge policy shift toward protecting natural resources in national parks. There historically has been a ban on the ``sale or commercial use'' of natural products removed from national parks, which separates the Park Service from so-called ``multiple-use'' agencies such as the U.S. Forest Service and Bureau of Land Management.

To get around the prohibition, Yellowstone determined that microbes from the thermal pools may indeed be natural resources. But because of the extensive commercial process of extracting marketable enzymes or genetic material, the end result is no longer a Yellowstone natural resource. It is a ``research result,'' ready to be patented. ``This important distinction between resource use and research results will protect Yellowstone's natural resources from commercial exploitation while at the same time guaranteeing the park a share of dividends that will be reinvested to strengthen Yellowstone's resource conservation mandate,'' explains a press release given to reporters at the signing of the Diversa deal in August.

Opponents of the Yellowstone-Diversa deal say the distinction is contrived. ``Frankly, it's total bullshit,'' says Hammond, of RAFI, the biotech activist group. ``They are taking the gene from a Yellowstone organism, putting it into another organism and calling it an invention. What's the implication for the natural world and us as humans if we allow this notion of genes and DNA to be called information and not life?'' Varley says Yellowstone managers ``struggled'' with the distinction, but pressed on. ``Although not fitting the classic image of inventions, the products of bioprospecting in national parks can be patentable intellectual property,'' Lindsey McClelland of the Park Service's Washington office advised Yellowstone officials last year in a memo. ``Individual corporations may be granted exclusive-product license in exchange for licensing fees or royalties that go directly to the agency and to the federal employees responsible for an invention.''

Mother Lode: This new policy has sweeping impacts on the national park system.

Fourteen other national parks have geothermal features that may be micro-universes of bugs like the Yellowstone ``thermophiles'' or ``extremophiles,'' as they are known for their ability to survive in extreme conditions. Dozens of other national parks are being eyed by bioprospectors, hunting for microbe strikes in caves, grottoes, springs, even in ancient seeds left behind in dwellings of prehistoric Indians.

At Yellowstone, scientists estimate that only 1 percent of the park's microscopic bugs have been found and identified. Yet even that fraction of previously unknown lifeforms has yielded windfalls.

``Park management believes that approximately 13 thermophilic microorganisms found at Yellowstone already have generated valuable research results for potentially useful biotechnological, pharmaceutical and industrial applications,'' Yellowstone Superintendent Mike Finley wrote Interior Secretary Bruce Babbitt last November in explaining the reasons behind cutting the Diversa deal.

Yellowstone fears a gold mine of microbes are being hauled out of the park, perhaps covertly. ``The park is trying to do its best to control the invasion and prevent the pillaging of park resources,'' says Perry Russell, assistant professor of biology at Cumberland College in Kentucky and one of the more than 40 bioprospectors permitted by Yellowstone to take microbes for research purposes.

The most lucrative Yellowstone microbe to be mined thus far is Thermus aquaticus, retrieved in the 1960s from a hot springs eight miles from Old Faithful by Thomas Brock, then an Indiana University researcher. He isolated an enzyme in Thermus called Taq, winning a Nobel prize. Genes from Taq were grown in a laboratory and patented.

In 1991, Hoffman-LaRoche, a huge drug company based in Switzerland bought the patents and used Taq to revolutionize testing for HIV and DNA fingerprinting. It was the modern-day equivalent of the gold strike at Sutter's Mill in California. ``Ever since Taq came on the market, everybody and his brother sees the potential for collecting these samples at Yellowstone and making money,'' says Russell of Cumberland College.

Neither Yellowstone nor the federal government receives any royalty income from Hoffman-LaRoche's commercial use of Taq. ``My ultimate purpose for establishing this [Diversa deal] is . . . so we can present it to Hoffman-LaRoche, the only visible use of [Yellowstone] research specimens with deep pockets,'' Robert Lindstrom, Yellowstone's head scientist and research permitting official, wrote in a memo last year to Varley.

Lindstrom believes Yellowstone has grounds to sue Hoffman-LaRoche, but some legal experts disagree. ``What's past is past and the notion of going back to LaRoche and asking for a contribution is based more on political or moral persuasion than any legal claim,'' says Michael Gollin, a Washington, D.C., attorney and co-author of Biodiversity Prospecting.

Let's Make a Deal: And Yellowstone officials wanted to bully the Swiss drug giant with a Diversa deal that was stacked against the national park. ``This document clearly favors `the company,' '' Lindstrom wrote in a memo to Varley about crafting the Diversa agreement. ``However, this incentive is necessary since most research and development is expensive and fruitless. Why spend more time negotiating over details that may never result in profits anyway?''

Varley says royalties paid to Yellowstone in Diversa's deal ``range between .5 percent and 10 percent,'' and are low because ``these companies are looking for a needle in a haystack.'' Under the agreement, Diversa will pay Yellowstone $100,000 over the next five years plus donate $75,000 worth of in-kind services.

Yellowstone has refused to make public the exact amount of royalties the park will receive in the deal, prompting at least one lawsuit alleging violation of the Freedom of Information Act (FOIA).

Beth Burrows of the Edmonds Institute, a small nonprofit ecosystem protection group in Edmonds, Wash., says they sued Babbitt Sept. 23 because they believe the Diversa deal represents a dangerous shift in the management of America's national park system. ``They've gone way, way over the line,'' says Burrows. ``Never did anyone think to have a national discussion whether this is an appropriate way to steward our national parks and the whole things smacks of arrogance and a lack of concern for open government.''

Varley counters that the park ran an intensive public information campaign, and ``the annoying thing about public involvement is the people who say they were not involved never called me or anyone else here and said I want to be involved.''

In a letter to Babbitt, Yellowstone's Finley stresses that any Diversa royalties paid to the park are considered ``proprietary and confidential and thus exempt from FOIA.'' Finley warns that letting the public know how much the federal government is receiving for commercializing park resources would harm Diversa's ``competitive position'' and put Yellowstone ``at a competitive disadvantage in negotiating permits with other firms.''

Park Service officials viewed the Diversa deal as a ``test case,'' but if it worked, ``Yellowstone could issue 15-20 such permits to other firms in the next year or two,'' Finley wrote Babbitt. And Babbitt ballyhooed the idea at May environmental conference in Costa Rica attended by Yellowstone officials. ``This concept of biological prospecting is brand new, but it's of real importance,'' he said. So important that Yellowstone decided it needed to hire a consultant: The World Foundation for Economic and Development (WFED), which has offices in Norway, Honduras and Washington. Co-founded by Preston Scott, a Washington ``intellectual property'' attorney, WFED is getting taxpayer funds for brokering Yellowstone bioprospecting deals.

Yellowstone agreed to pay the foundation up to $200,000 in the next two years. Scott says so far, his organization been paid $28,000 in federal funds. ``They came to us and asked us to help them sort through this issue and in return the public got one of the finest bioprospecting deals in the world,'' says Scott. In addition to giving WFED money out of the park budget, Yellowstone has been forwarding private money to the foundation.

Burrows questions the propriety of Yellowstone -- which chronically complains of budget shortages -- handing over park funds to WFED. ``Was this negotiated in public? Was there some sign put up by the park saying all environmental groups may apply?'' she says. ``There's so much wrong with all of this.'' Responds Varley: ``We've admitted up front we have no expertise in these things. We needed a navigator.'' But only 12 weeks since the Diversa deal was signed, Yellowstone finds itself way off course. The agreement is being rewritten, the first of what could be many lawsuits have been filed and the deal has triggered a debate within the agency over whether national parks should be run like patent offices. Diversa, a company that has changed its name four times in the past two years, is anxious to have the matter settled after beginning negotiations with Yellowstone in 1995. Some Yellowstone officials, including Varley, suspect the company already may have found a marketable enzyme and wants a deal to avoid any litigation.

Diversa CEO Bruggeman says while Diversa has 400 industrial enzyme patents pending, none involve Yellowstone research and ``until we know this agreement is in place we are not developing any Yellowstone specimens.''

Burrows, of the Edmonds Institute, says her organization is not trying to suppress scientific advancement at Yellowstone. But she questions whether the controversial deal is in the best interest of protecting America's newfound microbe gold mine. ``At Yellowstone National Park's 125th anniversary in August they signed this agreement and said they were the protectors of the park,'' she says. ``How cynical that seems now.''

© Copyright 1997, The Salt Lake Tribune

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