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There’s gold in them thar microbes!

The battle over bioprospecting in Yellowstone is heating up, venting questions about life, liberty and the pursuit of profits.

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In 1966, microbiologist Thomas Brock ladled a microbe from a geothermal pool in Yellowstone National Park. It was taken to a lab, analyzed, and the organism’s unique ability to produce the enzyme TAQ polymerase was isolated. Nearly two decades and a twist of genetic manipulation later, the “created” microorganism was patented. Because U.S. patent law prevents already existing life forms from being patented, an aspect of human ingenuity must be applied: Scientists simply alter the genetic code of an organism to claim that the organism is new, peerless, and therefore free to be patented.

This unique microorganism creates a heat-resistant enzyme that allows for the copying, or “fingerprinting,” of human genetic code, which has since proven extremely lucrative for its patent holder. The laboratory version of this bioprospected microbe originated in an organism dubbed Thermus aquaticus, and earns the Swiss pharmaceutical giant Hoffman LaRoche more than $100 million annually thanks to this act of “human ingenuity.” The American public and the National Park Service—effectively the owners and management stewards of the original heat-loving life form—have never seen a dime.

Removed from Yellowstone’s Octopus Spring through a long-established and carefully regulated permitting process, the microbe and the profits it generated caught the eye of under-funded national park managers looking to reap their fair share. But as an agency deliberately created for conservation—and not revenue—the National Park Service was prevented from reaping a profit from the sale of its natural resources to private enterprise. National parks were created to preserve national treasures, under the doctrine that some select areas hold a higher intrinsic value than their market value to the extractive industry. Thus, national parks are managed differently than land controlled by the Forest Service or the Bureau of Land Management, and they constitute some of the nation’s most pristine and unique country: deep caves, sandy seashores, alpine summits, undersea volcanoes. Instead of multiple-use management, the National Park Service is required by Congress to administer the parks “to conserve the scenery and natural and historic objects and the wildlife therein…by such means as will leave them unimpaired for future generations.”

Three decades after the financial success story of T. aquaticus, the National Park Service found a way to bypass the decree of Congress that prevents for-profit partnerships with private enterprise. A federal act that facilitates the sharing of information between “federal laboratories” has Yellowstone officials setting precedent by sharing the profits made by a San Diego company permitted to remove “biological tissues, soils, sediments, water, and rocks from Yellowstone.”

Using a series of legal loopholes—i.e., calling the Park a “laboratory” and the Park’s wildlife “research results”—Yellowstone is using the Federal Technology Transfer Act to enter into a private corporate agreement known as a CRADA—Cooperative Research and Development Agreement. The San Diego firm is Diversa, a $200 million organization that claims it is “evolving the best from nature” by targeting “key multi-billion dollar market segments.” Diversa also claims partnership with many multi-nationals, including Dow Chemical, Agribusiness Biotechnology Research, and Syngenta (formerly Novartis), firms that are notorious with folks wary of irradiated and genetically modified foods.

For the first time since its inception, the Park Service stood to profit by selling park resources, a move that quickly sent the tempers of activists the way of Old Faithful.

“The agreement with Diversa represents the first time that a national park has entered into a profit sharing agreement with a private commercial interest,” says Mike Wood, former attorney for the Alliance for the Wild Rockies. The Alliance joined a handful of other activists in a lawsuit against the U.S. Department of the Interior over their 1998 profit-sharing agreement with Diversa, claiming, “This directly links the Park Service’s financial future to commercial, extractive interests in the Park.”

Microbial gold rush

The money involved with Yellowstone CRADAs is not insignificant—Diversa estimates that Yellowstone’s microbes could net $12 million to $17 million in corporate profits. These funds could prove vital for a park whose annual budget is about $30 million and is experiencing a monumental backlog of road, trail and facility construction and maintenance.

“If the Diversa deal were attached to the discovery of TAQ polymerase, it could have funded this park for four years just in royalties,” says John Varley, director of Yellowstone Park’s Center for Resources, which oversees all bioprospecting efforts within the park.

For some environmentalists, however, this potential windfall causes far more concern than any immediate physical damage inflicted by researchers on poolside environments or by the small-scale removal of biomass.

Such concerns prompted a lawsuit to stop the National Park Service from permitting further bioprospecting, or at least large-dollar profit sharing agreements from affecting future park management decisions.

The lawsuit, filed in 1998 by the Alliance, the Edmonds Institute and others, contained four basic points. First, under the National Environmental Policy Act (NEPA) a shift towards profit sharing should be considered a “major action,” and therefore worthy of an Environmental Impact Statement (EIS) or an Environmental Assessment (EA). The Park Service chose not to do an assessment because, according to Varley, “Bioprospecting was already going on in the park, and nothing was going to change.” The suit also questioned the legality of a national park sharing in corporate profits, and whether removing life—even microbial life—from a park was legal. The final point of the suit argued that selling the rights to national treasures was “a violation of public trust.”

Despite the fact that U.S. District Judge Royce C. Lamberth called the classification of parks as laboratories “absurd,” he ruled in favor of the Park Service on all points except the need for an environmental assessment. Calling it a “major federal action,” Judge Lamberth forced the park to complete an environmental assessment before Diversa could bioprospect further. The first draft of that assessment is due out within a month. “In essence,” says Wood, “the court has decided to permit future commodification of park resources, which had until now been completely off limits.”

Mother Earth or mother lode?

Currently, 18 bioprospectors—having signed permits but not CRADAs that would require them to share their bounty with the park—are continuing their work in Yellowstone. A portion of their research includes extracting microbial samples in quantities that are seemingly inconsequential. “You’d probably equal the biomass taken by all the bioprospectors in one year if you caught a trout and fried it up in your pan,” Varley says. “And [for that] I’ll sell you a permit for $10.”

Still, a ranger hands every park visitor a brochure upon arrival that proclaims, “Defacing of park features, collecting archeological or natural objects, littering and picking wildflowers is illegal.” Yellowstone’s policy of allowable extraction is multi-tiered, allowing fish to be removed but not deer, microbes by scientists but not pine cones by children. Seemingly, the line is drawn—with the exception of fishing—with permitted research. Biologists have been entitled to remove hair and scat samples from the park for decades, and microbial or genetic biologists share those same privileges.

Scientific research from Yellowstone has proven invaluable during recent high-profile battles to protect the park’s biodiversity and sanctity. In the last decade alone, Yellowstone has been forced to fight both public and private interests in litigious issues such as the wildly successful wolf reintroduction program and the on-again, off-again ban on snowmobiles. Research has steadily provided conservationists with data aligned with the importance of healthy, intact ecosystems.

“With no knowledge base, we would have lost the wolf wars, we would have lost the bison wars, and without science we would lose the snowmobile war,” says Varley. “Science is the only way we’re ever going to win that war, because if you gum it up with human values, we’ll end up with snowmobiles.” Yellowstone National Park has been used for scientific research for more than a century, and Varley is adamant that “science has to be a part of this park in order for us to keep it. Besides, it’s adding so much to humanity’s knowledge base, I hate to see people attack the science.”

Invisible deals

The science, and the resulting knowledge obtained during Yellowstone’s 129-year history, amount to 30,000 titles recognized by the National Archives. Housed in the basement of the Albright Visitor Center at Yellowstone, they are, appropriately, accessible to anyone. However, visitors opening up the document that contains the Diversa CRADA will find something missing: an elusive Appendix B.

Yes, the terms of Yellowstone’s precedent-setting agreement with Diversa are privacy-bound. Despite at least two Freedom of Information Act requests, the government has refused to reveal the financial terms of that agreement, saying only that the amount the park will receive is between 0.5 percent and 10 percent of the profits reaped from park resources. Although at least two publications have quoted sources vowing that the Park Service’s share of royalties is exactly 0.5 percent, Varley refused the Independent’s request to disclose the financial terms. “I can’t,” he says. “I would be committing a felony if I did.”

Felony or not, Varley’s refusal to confirm the way critical public dollars are being managed comes amidst a vortex of public criticism and legal pressure to disclose the financial agreements contained in the CRADA. Still, he won’t budge, saying only that transparency would be something he would consider for future CRADAs.

“You might get it,” says Varley. “I think its going to be hard to pull this off unless it’s totally transparent.”

He would know: In the world of bioprospecting, Varley is well-versed, well-traveled and well-respected. “I’ve taught 41 countries in Africa and Asia about how to protect themselves from the big multi-national companies,” he says, “how to protect themselves and their resources from being exploited.” Varley insists he accepts no funding from firms affiliated with bioprospecting.

The public watchdogs

So far, the most fixated Yellowstone guardians, such as the Greater Yellowstone Coalition, the Wilderness Society, and The National Parks Conservation Association, have not joined the suit. Instead, legal action taken against the park for its involvement in profit sharing has been based out of Washington state, Missoula and Washington, D.C., and Varley openly questions the intent of those filing suit. Co-plaintiff The Edmonds Institute, for instance, typically focuses its energy against biotechnology, genetically manipulated organisms and intellectual property rights, and he says they’re not interested in the national parks.

“They’re using this issue to use the highly visible Yellowstone platform to float things that are not going on here and have no application here, like genetic engineering,” says Varley. Pointing to the absence of the Greater Yellowstone Coalition from the lawsuit, he says, “Most of the groups that are considered our “watchdogs” have a neutral… or positive attitude towards bioprospecting. The true park watchers are not opposed to this.” But due to the far-reaching aspects of this precedent-setting arrangement, former Alliance attorney Wood says such logic is off-base.

“He’s missing the point,” says Wood. “This is not just about Yellowstone, this is about the whole Park Service nationally. If they can do it in Yellowstone, they can do it anywhere.” A National Park Service newsletter from June 25 confirms this: “We are preparing an NPS-wide environmental assessment… which will apply to all 384 units of the National Park System.” Michael Scott, executive director of the Greater Yellowstone Coalition, warns of what he sees as a “potential conflict of interest.” Scott repeats the concern that putting royalties directly back into a particular park might create “perverse incentives” for park managers, whose budgets have been flowing at a trickle for a decade.

Varley also sees the potential that park managers will be faced with choosing between conservation and profit. “There’s some room for abuse there,” Varley admits. “You could get into a situation where a superintendent is making decisions on issuance of scientific collection permits based on their potential income, but you make the whole thing so transparent that the likelihood of that guy getting away with it without going to jail is zilch.”

Historically, the record of Park officials willingly sharing CRADA information with curious taxpayers has proven rather tepid.

PEER review

Despite what some park officials say, at least some of the usual environmental watchdog groups are paying attention and are concerned. The Bush Administration has unveiled a plan that provides for an increased role of private enterprise in national parks. An interesting approach, considering that national parks have enjoyed a successful history of public management based on conservation and biodiversity for nearly a century, without reaping profits from the commercial sector.

Still, the White House supports a strategy that places greater value on private interest; a plan some say could hurt conservation efforts in the national parks. As governor of Texas, Bush offered incentives for developers to construct privately managed resorts at state parks. Those resorts were slated to include conference centers, shops and rooms that rented for $200 a night, with profits to be split between the investor and the park. The plan was nixed quickly and quietly following a well-publicized report disclosing the good-for-business deals.

The report, filed by a governmental watchdog group known as Public Employees for Environmental Responsibility (PEER), condemned the idea that encouraging profits would make for better park management. Last week, that same group filed a challenge to Bush’s new plan under the National Environmental Policy Act, saying the Park Service should evaluate CRADAs in each park on a case-by-case basis. PEER believes that capturing all the diverse aspects of the national parks under one umbrella may prove ill conceived, or hasty at the very least.

“NPS has no idea of the number, nature or quantity of resources companies may collect under possible agreements,” the PEER challenge reads.

But Yellowstone’s Varley sees it differently. “I personally don’t feel the issues are weighty enough to warrant an EIS,” he says. “I’ve been around the bison issue, the wolf issue—the legitimate EIS subjects—I don’t put it in the same league.”

PEER, on the other hand, says that because many issues remain unexplored and the upcoming decision will be implemented system-wide, park officials should proceed with caution and not be influenced by the chance to swap resource rights for a share of corporate profits.

“This is the Park Service’s stem cell debate,” says PEER board member and retired Park Service Manager Frank Buono. “Sure, there will be benefits to science from bioprospecting, but it challenges the integrity of the park.

Are park resources going to be available for commercial exploitation?”

PEER’s challenge comes at a critical time for interested parties. Public comment on the draft EA ends Aug. 27, and following its release next month, there will be a 60-day public comment period on the Park Service’s use of profit sharing agreements. Buono, a former deputy ranger at Joshua Tree National Monument, says the entire notion is flawed, both from a conservation and legal perspective.

“The very removal of biotic material is an impact and against park regulations that ban the killing, wounding or trapping of any animal,” he says. “John Varley is misapplying the regulations.”

Also of concern to PEER is the motivation faced when royalties grow as large as park budgets; many conservationists are annoyed that Yellowstone refused to perform an environmental review until it was required to do so by the court.

“A manager’s objectivity can be colored by the money coming in. Now park managers are seeing their resources as dollar signs,” says Buono. “The EA is a completely inadequate tool. Every individual proposal needs a full environmental review.”

Environmental assessments are appropriate when impacts are expected to be “minimal.” It will take a fraction of the time and effort required by an EIS, which is a comprehensive review of all impacts. An EIS is appropriate when the impact is considered to be “significant.”

Raiding the treasury?

As a founding father of the National Park Service, Theodore Roosevelt would no doubt be intrigued by the battle raging over who is permitted to profit from our national treasury. Although it may seem unfair that the American public should not receive a significant share of the royalties stemming from profitable commercial applications of park resources, the concern over how it will affect management decisions is no less significant. Considering the contentiousness of the issue, it is startling—if not disconcerting—that Yellowstone’s point man in this precedent-setting decision is wholeheartedly committed to the idea that both profit sharing and bioprospecting are, without exception, in the best interest of both the American people and the national parks.

To support profit sharing agreements in this context is to engage in a process that allows the permitting of life forms, microbial or otherwise. When Varley is pressed on how he comes to terms with his role in the process, his answer is not surprising.

“Aiding and abetting genetic engineering?” he jokes. ”It did take me a long time to sort through that, and it was the people in the microbe world that caused me to carry the attitude of comfort that I have towards what is going on in laboratories.” Humans have been selectively planting and cross-pollinating for millennia, he says. This is just the next step in that process. “I see very little difference, other than the speed at which it’s done,” he says.

Perhaps, but such claims endorse the idea that human ingenuity is no less qualified than the processes that have allowed for millions of years of natural selection. For the first time in history, breeding choices are being based not on an organism’s ability to adapt and succeed, but on its potential to generate profit for shareholders.

As for what President Roosevelt’s take on this issue might have been, former Alliance attorney Wood ventures a guess.

“Teddy grew up in a time of rampant destruction of our public resources, mostly by private interests, and that was specifically why he was so adamant about getting a system in place to protect native biologically diversity for future generations,” Wood says. “To see the park getting so tightly involved with private interests would be incredibly disturbing for him.”

Varley disagrees. “[Roosevelt’s] man Gifford Pinchot would probably say ‘That’s exactly what conservation’s about, utilizing everything you can as long as it’s not to the detriment of the resource, or for the benefit of mankind,” he says. “I don’t know what Teddy would say.”

To comment on the draft environmental assessment, postmark your comments before Aug. 27 and send them to: The National Park Service Benefits Sharing Team, P.O. Box 168, Yellowstone National Park, WY 82190. Or, wait until the assessment is released, then submit your comments within the 60-day period.

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