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Yellowstone National Park: ‘For the benefit and enjoyment of the people’?

In 1997, Yellowstone National Park was the subject of a bioprospecting agreement between the US government and Diversa Corporation. Beth Burrows, director of one of the public interest groups that went to court to stop that agreement, gives a timely personal account of events as 188 governments meet in Kuala Lumpur to make rules on ‘access and benefit sharing’ under the CBD.

MORE than 500 years after Columbus ‘discovered’ a world new to him and declared it to be the property of his funders, people still have problems with explorers. Today, the object of desire is not land but genes - the genes from plants, animals, microorganisms, and even human beings. And just as before, the explorers try to stake a claim.

Whether you call what they’re doing ‘exploration’ or ‘invasion’, and whether you call them bioprospectors or biopirates, depends on how you see your relationship with what’s being taken. It matters whether you consider yourself its ‘owner’ or its ‘caretaker’ or just another critter in a shared ecosystem.

The deal

In the summer of 1997, I got a call from a reporter wanting to know about patents.

‘Do you have some time?’ Suzanne Clark asked.

‘Sure, as much as you need,’ I said.

So, for half an hour I yammered on and on about how patents help legitimise ownership in inventions and, in some cases, discoveries. I explained how patents can be an enticement to investors, something that can make a long wait for profits worth it - notably, 20 years of market control of whatever’s patented. Finally, I asked, ‘What’s this really about? Why suddenly are you calling me and asking about patents?’

And then she told me about a deal being made between a private corporation and the US Department of the Interior to allow bioprospecting in Yellowstone National Park. ‘They’re looking for the heat-loving microorganisms that live in all those hot pools and geysers,’ she said.

That was how I learned that the official stewards of the national parks were about to announce a path-breaking deal for the extraction, commercialisation, and patenting of living organisms from Yellowstone.

‘Can I call you back?’ I gulped. ‘I’ve got to go.’

‘What do you mean,’ she answered, ‘you said you’d give me as much time as I needed.’

‘You know,’ I answered, ‘there are only two places in the whole United States that most people understand as commons. Only two places that people really care about that way. One of them is the Grand Canyon. The other is Yellowstone National Park. You just told me they’re going to allow bioprospecting in a place the people still understand as commons. They’re going to make the people of the United States complicit in the patenting of life forms they have been given to protect and steward for future generations. I have to get off the phone because I only have a few weeks before they announce that deal, just a few weeks to find a lawyer and sue the United States Department of Interior for violation of the public trust and theft from the national commons.’

The challenge

A few minutes later I was on the phone with Andy Kimbrell and Joe Mendelson, lawyers at the International Center for Technology Assessment in Washington, DC. They took the case pro bono. Eventually, we were joined by the Alliance for Wild Rockies and Phil Knight, a longtime defender of Yellowstone.

1 July 1997, Joe filed our first Freedom of Information Act (FOIA) request. 15 August, he filed our petition for compliance with the National Environmental Policy Act. (The official stewards of Yellowstone, it turned out, hadn’t done an environmental impact assessment of the effects of one of the biggest changes of policy in years.)

17 August 1997, the US Department of the Interior and the National Park Service signed the deal with Diversa Corporation. They celebrated their Cooperative Research and Development Agreement (CRADA) at Yellowstone’s official 125th anniversary celebration. The park was going to get royalties from products derived from the organisms they were allowing Diversa to remove. (Ultimately, Diversa would be allowed to collect ‘biological tissues, soils, sediments, water, and rocks’ and I would notice that that could include Smokey Bear.)

5 March 1998, one internal review, one denial of petition, two FOIA requests, and one FOIA settlement later, Joe and Andy filed a lawsuit to stop the Yellowstone deal. Two months later we learned that the Park Service was looking to make 15 to18 other deals similar to the one at Yellowstone.

Eventually, we won the first part of the case. The court agreed that the Yellowstone deal was a big change in national policy and as such, required an environmental assessment. (We’re still waiting for that assessment.)

Later, we learned the financial details of the deal. (‘They sold our heritage for a pittance,’ Joe Mendelson would tell a reporter.)

And still later, we lost the second part of the case. The judge said the Department of the Interior did not violate all the laws we thought they had violated; he said they had not violated the public trust, and that it was okay that they had declared Yellowstone a laboratory so as to make the deal fit a law that would allow them to make such a deal.

The reason

I’m often asked why we did it, why did we sue. The Edmonds Institute is, after all, a little public interest organisation doing research and education, not litigation.

I still tell people what I put up on our website - we sued because as we understood what was happening in Yellowstone, it seemed that public agencies were acting in ways inconsistent with the missions they had been given by the people. It seemed they were acting counter to the protection of biodiversity, counter to the public interest, and even counter to the social contract that binds us all together.

To discover if we understood correctly, we, together with others, sued. Essentially, we asked the courts to help us do some research. As I wrote to the lawyers when it all began:

‘125 years ago a roll call vote of 115 ayes, 65 nays and 60 abstaining made Yellowstone this country’s - and the world’s - first national park. Ulysses S Grant signed it officially ‘ours’ in 1872.

‘Home to more geysers and hotsprings than the rest of the world combined, Yellowstone’s miles of lakes, rivers, trails, meadows, mountains, streams and even grizzly bears hold a special place in the public consciousness....

‘Today, at the same time as the park is in a deep funding and conservation crisis, its wealth is being tapped by private prospectors. Some of them are going to make big money out of Yellowstone.

‘The resource being extracted is a kind of living gold - microorganisms, tiny forms of life that exist only in the kinds of environments found at Yellowstone - highly acidic and extremely hot thermal pools and geysers, for example.

‘These heat-loving microorganisms and the enzymes they produce can be extremely useful in industrial processes ranging from paper and beer-making to meat tenderising and pharmaceutical creation.

‘Thermus aquaticus, one such useful microorganism, was taken from Yellowstone a few years back and one of its enzymes ... 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 microorganism or its enzyme.

‘Today there are many corporate prospectors and their agents in Yellowstone and the National Park Service is looking for ways to devise licensing agreements with them to ensure that taxpayers gain from profits derived from the national treasury. The Edmonds Institute ... has several concerns in this matter: at the deepest level is our concern that the Park Service is participating in the commercialisation and privatisation of life. As MIT molecular biologist Jonathan King once said, “Privatising life in a place like Yellowstone is like privatising the sky - it is a misappropriation of the common heritage of us all...We didn’t save Yellowstone to make a profit. We saved it because it has greater value.”

‘On another level, (we’re) concerned that if the Park Service is negotiating contracts and agreements with private individuals and corporations for access to materials in the national parks, those negotiations be made public, with adequate time and provision made for public comment. If the Park Service is negotiating, the public has a right to see that the Park Service does a good job of it, especially where the revenues concerned might be sufficient to pay the annual costs of the Park Service itself.

‘Transparent negotiations are essential in a democracy, especially where there appears to be an absence of the usual pressures of the market. There is, in the case of Yellowstone for example, no competitive bidding for the privilege of prospecting the parks.

‘While ...(we do) not endorse the commercialisation of the parks or the patenting of microorganisms or the enzymes derived from them, ... if such commercialisation and patenting are deemed by the national will to be desirable, especially in times like these where monies are short for such desirable public purposes as maintaining the national parks (not to mention maintaining social safety nets), then all aspects of the process whereby national treasures such as the parks are apportioned or made accessible to private companies and individuals must be made strictly public, with all negotiations transparent and subject to public comment and scrutiny. To do anything else is to be complicit in theft from the national treasury.’

The last time I went to Yellowstone, I took a long, hard look at the words on the great stone arch at the park’s entrance. They say, ‘For the benefit and enjoyment of the people...’.

UPDATE

In June 2001, the National Park Service asked for comments on their ‘Benefit Sharing Notice of Intent’. We commented. Later, they asked for comments on the proposed scope of their intended assessment. We commented. In November, 2002, at a side event at an ‘Open Ended Expert Workshop on Capacity Building for Access and Benefit Sharing’ of the Convention on Biological Diversity, the head of research at Yellowstone said that the assessment would be ready in August. It’s February 2004 and we’re still waiting for the promised assessment.

In a separate decision, Judge Lamberth disagreed with our interpretation of CRADAs and said that a law created to ensure the transfer of technology from federally funded research to the private sector could be made to apply to the national parks, even if it meant considering the parks private laboratories and living organisms research opportunities. And so, as we waited for the environmental assessment, we decided to forgo an appeal on the CRADA decision. We figured a better CRADA case would come along and, whatever the case, the Park Service could not go ahead with another CRADA until they did an environmental assessment. That much precedent had been established by the first court decision. Leaving nothing to chance, however, in 2002 we made an application under the Freedom of Information Act to obtain from the National Park Service news of any other CRADAs in the national parks. Unfortunately, we’re still waiting for the FOIA to kick in, still waiting for the release of what I have been told are boxes of CRADA-related documents.

And so we all read the US Federal Register every day to ensure that no environmental assessments or CRADA announcements slip by unnoticed and uncommented upon.

In the meantime, the head of research at Yellowstone travels the world, offering the arrangements made with Diversa Corporation as a model of access and benefit sharing for other countries to emulate with their biodiversity. He doesn’t mention that under US law government agencies - including park employees - are required to protect the Confidential Business Information (CBI) of the companies with whom they make CRADAs. He doesn’t say that such ‘protection’ may put public servants in conflict of interest, that park employees may not even be able to legally inform the public of what’s going on... That’s what happened with the Diversa deal. The financial nitty gritty was in Appendix B of the CRADA. CBI prevented journalists, members of Congress, and members of the public from seeing that appendix. Indeed, if it weren’t for the Mexican journalist who saw the contract and exposed the details, we might never have known exactly what had happened in Yellowstone.    u

This is a revised and updated version of an article which originally appeared in Earth First Journal.

Beth Burrows is the president/director of the Edmonds Institute, USA. To be kept updated on the Yellowstone CRADA, write: <beb@igc.org>.

 


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