The Edmonds Institute
International Center for Technology Assessment
Alliance for the Wild Rockies
and Phil Knight
PUBLIC INTEREST WINS IN YELLOWSTONE
COMMERCIAL BIOPROSPECTING SUSPENDED UNTIL
DEPARTMENT OF INTERIOR OBEYS THE LAW
JUDGE LABELS BACKROOM DEAL A DRAMATIC SHIFT IN PARK POLICY,
CALLS FOR ENVIRONMENTAL ASSESSMENT, PUBLIC DEBATE
Washington, D.C. Wednesday, March 24, 1999. One year after the Edmonds Institute (EI), the International Center for Technology Assessment (CTA), and the Alliance for the Wild Rockies(AWR) filed suit to stop the Department of the Interior and the National Park Service from making behind-closed-door deals for the harvesting and commercialization of natural resources in Yellowstone National Park, Judge Royce Lamberth, of U.S. District Court for the District of Columbia, said the public interest groups were right.
In a ruling published today, Judge Lamberth suspended implementation of a bioprospecting deal between Yellowstone and Diversa Corporation that had been announced by the National Park Service in August, 1997. Lamberth called on the Department of the Interior to prepare an environmental assessment in accordance with the requirements of the National Environmental Policy Act. He also ruled that the plaintiffs could seek a further judgement on whether the Department of the Interior ever had legal authority to enter into cooperative research and development deals (CRADAs) such as the one attempted with Diversa.
"When Smokey Bear comes out of hibernation this spring," said Beth Burrows, director of the Edmonds Institute, "he'll be smiling. The park didn't get sold down the river while he was sleeping. The National Environmental Policy Act, the public interest, and our whole system of stewardship did not get subverted by backroom deals."
"This decision mandates that the American people, the owners of the parks, have to be consulted. Any commercial exploitation has to go through a public review. The decision effectively prevents the exploitation of our national parks solely for commercial gain," explained Joseph Mendelson, legal director of the Center of Technology Assessment and lead attorney on the Yellowstone case. "It guarantees that the primary purpose of having a national park system is to preserve the country's scenic beauty and natural resources for all of us to enjoy."
Mike Bader, former Yellowstone ranger and executive directive of the Alliance for the Wild Rockies, added, "This legal decision makes clear that the National Park Service and the Department of the Interior embarked on a dramatic shift in management policy that could have affected the integrity of Yellowstone and the park system for years to come. They did a deal without the knowledge and consent of the American people and without any review of the environmental and aesthetic impacts. We are very pleased that the court found their actions to be illegal and stopped them."
The suit against the Department of the Interior (DOI) was filed March 5, 1998. It alleged DOI violation of the Technology Transfer Act of 1986, the National Park Service Organic Act, the Yellowstone National Park Organic Act, the National Environmental Policy Act, and Public Trust Doctrine. The legal action come on the heels of announcement in August, 1997, at the 125th anniversary celebration of Yellowstone, of a breakthrough deal allowing Diversa, a private company, to remove Yellowstone National Park resources and use them to develop patentable products. In return for granting such access, Yellowstone was to receive a small fee, a percentage of royalties from any products that might ensue, and assistance in scientifically cataloguing the resources of interest. The company stood to make millions. How much the park stood to gain is still a matter of secrecy and contention. (EI and CTA are still pursuing a Freedom of Information Act suit to shake loose the financial details of the Diversa deal.)
The subjects of all the deal-making at Yellowstone are a kind of living gold -- microorganisms, tiny forms of life that exists only in the kinds of environments found at Yellowstone -- highly acidic and extremely hot thermal pools and geysers, for example. The heat-loving microorganisms and the enzymes they produce can be extremely useful in industrial processes ranging from paper and beermaking to meat tenderizing and pharmaceutical creation. Thermus aquaticus, one such useful microorganism, was taken from Yellowstone a few years back and one of its enzymes currently earns for its "owners", Hoffman LaRoche, the Swiss drug giant that holds its patent, more than $100 million a year, with earnings projected to increase to $1 billion a year by 2005. No money came to the national parks or the national treasury from the Yellowstone-derived microorganisms or its enzyme.
The Diversa agreement, seen by the National Park Service (NPS) as a potential cure for the Thermus aquaticus dilemma and a model for many more deals to come, was about much more, however, than making money from microorganisms.The NPS came to a deal with Diversa through a Cooperative Research and Development Agreement (CRADA), an arrangement used to avoid the stringent requirements for public notification and involvement called for under the National Environmental Protection Act (NEPA). Getting wind of the deal before it was announced at Yellowstone's 125th birthday celebration last August, EI and CTA cried foul and filed a legal petition with the Department of Interior, asking the agency to drop the deal, open the decision-making process to public scrutiny and participation, and do the environmental impact assessments required under NEPA. January 21, National Park Service Director Robert Stanton denied the petition to drop the Diversa deal.
A lawsuit followed in the wake of extensive legal efforts by EI to obtain the details of the Diversa deal through Freedom of Information Act requests. Wednesday's ruling by Judge Lamberth underlined the importance of the case:
"The Yellowstone-Diversa CRADA marks the first time in the history that an American national park would stand to gain financially from scientific discoveries made within its borders. To understand the significance of this shift in policy, it is necessary to briefly examine the emerging field of "bioprospecting" and how it relates to the Yellowstone National Park." . . .
"Bioprospecting presents a totally, new, related (whether the fundamental nature is different than traditional consumptive or indistinguishable is a matter of much debate) use that targets microscopic resources - the genetic and biochemical information found in wild plants, animals and microorganisms." . . .
"The precise number of bioprospecting CRADAs being considered department-wide by defendants is unknown, but a number of parks other than Yellowstone hold great potential for bioprospecting. Judging by the DOI Solicitor's September 1998 memorandum, other federal lands may be under consideration for bioprospecting CRADAs. Nevertheless, as far as the court is aware, the defendants have not conducted a rulemaking procedure for this change in policy, nor have defendants solicited public comment informally. The defendants have declined requests from members of Congress seeking information about the financial aspects of the Yellowstone-Diversa CRADA. Essentially, 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." . . .
"[A]lthough each sample taken from Yellowstone may be the size of a test tube, the overall impact of the specimen collection authorized by the CRADA and its corresponding permit is not teaspoon-sized. As described in the CRADA's Statement of Work, Diversa plans to study microbes present in a wide array of ecosystems and "systematically sample" the sites in order of their uniqueness and genetic diversity. This will entail a significant amount of collection throughout a large area of the Park and, by the CRADA's own terms, is expected to have a duration of at least five years. Taken together, the amount of teaspoon-sized samples can hardly be considered so inconsequential as not even constitute a cognizable injury to plaintiffs' legitimate aesthetic and recreational interests." . . .
"The defendants themselves proclaim the ecological significance of Yellowstone's thermal features [T]here can be no debate that the Yellowstone-Diversa CRADA is a precedent-setting agreement within the National Park System and the DOI in general. The first agreement of its kind, the CRADA was announced in the presence of the Vice President, the Secretary of the Interior, the Director of the Park Service and the Superintendent of Yellowstone. As a many as eighteen other entities have already discussed similar agreement with the defendants."
Upon hearing of Judge Lamberth's decision, Phil Knight, Yellowstone guide and outfitter and co-plaintiff in the landmark case, noted, "Yellowstone's unique features are not some open treasure chest for coorporations to exploit. With this decision, Yellowstone's integrity will be protected for generations to come."
*The Edmonds Institute is a public interest, non-profit organization that does research and public education on issues related to environment, technology, and law.
*The International Center for Technology Assessment is a Washington, D.C.-based non-profit organization dedicated to addressing the environmental, economic, and ethical issues surrounding biotechnology.
*The Alliance for the Wild Rockies is a conservation alliance working to protect wilderness and fish and wildlife on public lands in the Northern Rockies.
*Phil Knight is a guide, activist, and outfitter who has lived in the Yellowstone area for 14 years.