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Judge disallows park's microbe agreement By MICHAEL MILSTEIN Gazette Wyoming Bureau A federal judge this week suspended Yellowstone National Park's groundbreaking agreement with a California biotechnology company that allowed the company to capitalize on the innate talents of microbes from Yellowstone's hot springs while assuring the park a cut of any profits generated by the tiny workhorses. U.S. District Judge Royce C. Lamberth ruled on Wednesday that Yellowstone managers should never have struck the deal without first considering the environmental impact and soliciting public input, just as they must do for any new wildlife management plan or construction project. The judge's ruling marked a victory for groups that filed a lawsuit claiming that park officials had cut the deal in secret, without involving the public that is in fact the true owner of Yellowstone. "The best disinfectant is sunshine and we need to shine some light on this agreement to see just what the Park Service is up to," said activist Phil Knight of Bozeman, one of the plaintiffs in the lawsuit. Not only has the National Park Service failed to seek public input on its first bioprospecting agreement, Lamberth found, but the agency has denied requests from environmental groups, the press and even Congress for financial details of the deal with Diversa Corp. of San Diego. "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 issues nor made any definitive policy statement through regulations or less formal means," the judge wrote in his 41-page ruling. "Although parkgoers may be willing to forgive the trespass of their national parkland when the goals of that trespass are scientific and educational, commercial exploitation of that same parkland may reasonably be perceived as injurious," he wrote. Park officials said they would comply with the judge's ruling by beginning work on an environmental assessment weighing the impacts of the bioprospecting agreement, the first attempt by a national park to sanction profit-making research. Yellowstone Superintendent Mike Finley said any action that interferes with the agreement will "only deprive the park of money that would be used to protect the park's resources." And Preston Scott, a consultant for the park who helped develop the agreement, said the ruling would stop Diversa from sharing money and knowledge with Yellowstone but would not affect the underlying permit that allows Diversa to collect Yellowstone microbes in the first place. He said the point of the agreement was not to allow Diversa to commercialize the park microbes, but the scientific secrets they divulge during laboratory study. "Diversa's permit to collect is still in place - but now the park will get no money and no information," Scott said. Biotech companies have in fact prospected in Yellowstone for hardy hot-spring microbes for years, but Diversa was the first to sign an agreement that guaranteed the park a royalty on any Yellowstone discoveries. One enzyme from a Yellowstone microbe now fuels DNA fingerprinting and earns more than $100 million per year for the Swiss company that owns the patent on it. The park has never seen a cut of the proceeds. Scientists estimate they have identified little more than 1 percent of all Yellowstone microbes, which naturally produce enzymes useful in laundry detergent, beer and wine making and many other industrial processes. Diversa specializes in identifying such enzymes and other agreements similar to the Yellowstone pact give its scientists access to microbes in Iceland, Costa Rica and Indonesia. Since 1994, Diversa has discovered and patented more than 500 novel enzymes with plans to market them to worldwide customers including Dow Chemical. An alliance of environmental groups and organizations opposed to the patenting of natural organisms sued to block the Cooperative Research and Development Agreement, or CRADA, Yellowstone officials signed with Diversa during 1997 ceremonies to mark the park's 125th anniversary. The groups argued that the deal opened Yellowstone to a kind of microbiological gold rush that could lead to companies carting off the very resources the park was created to protect. "The last thing we want to see is people in hip waders out in these thermal features looking for a bonanza," said Mike Bader, executive director of the Alliance for the Wild Rockies in Bozeman, which filed the lawsuit along with the Edmonds Institute, the International Center for Technology Assessment and Knight. Under the agreement, Diversa agreed to provide Yellowstone with $175,000 in cash and equipment over five years, plus an undisclosed percentage of profits generated by Yellowstone discoveries. National Park Service officials have denied requests from the groups that sued, the press and Congress to disclose the royalty amount, saying the information is considered a business secret. The groups that sued over the agreement have also filed suit to shake loose the details. They suggest that park officials with little business acumen may be trying to cover up what the public would consider a giveaway to big business. "They're in over their heads and now they don't even want to tell us what they're up to with this company," Knight said. Nearly 20 other biotech companies have shown interest in striking similar deals with Yellowstone. In his ruling this week, Lamberth rejected the government's argument that Diversa scientists have little impact on Yellowstone because they collect only a few test tubes of hot spring water and then survey the small samples for valuable microbes and their enzymes. Yellowstone officials in fact authorized Diversa to collect not only from park hot springs, but also from "alpine tundra ecosystems, subalpine forests; riparian habitats, sedge marshes, bogs, swamps, streams and lakes," the judge said. "In any event, although 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," the judge wrote. "As described in the CRADA's statement of work, Diversa plans to study the 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." Even the government concedes that "the collection of microbial samples, while not rising to the level of strip mining or timber harvesting, does involve some intrusion into the delicate ecosystems around Yellowstone's thermal features," Lamberth wrote. "Likewise, there can be no debate that the Yellowstone-Diversa CRADA is a precedent-setting agreement within the National Park System and the (Department of Interior) in general," the judge said. "The introduction of commercial bioprospecting into the nation's parks represents a dramatic change in Park Service policy both in Yellowstone and more generally." Government attorneys had claimed the groups that filed the lawsuit had no standing to do so. Lamberth rejected that claim and also rejected a government motion to dismiss the groups' arguments that Yellowstone officials cannot legally enter into agreements permitting commercialization of park resources such as microbes. A judge has yet to rule on those arguments.
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