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4-Patents: Landmark Decision in the Yellowstone Case



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 ALERT: Landmark Decision in the Yellowstone Case
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From:

The Edmonds Institute
20319-92nd Avenue West, Edmonds, Washington 98020

Alliance for the Wild Rockies
Box 8731, Missoula, Montana 59807

International Center for Technology Assessment
310 D Street NE, Washington, D.C. 20002

Phil Knight
P.O. Box 6151
Bozeman, Montana 59771-1651

_______________________________________________
_______________________________________________


                    PRESS RELEASE

_______________________________________________


Contact: Beth Burrows (Edmonds Institute) 425-775-5383
             Joseph Mendelson (Center for Technology Assessment) 
202-547-9359
             Mike Bader (Alliance for Wild Rockies) 406-721-5420


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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 corporations to
exploit. With this decision, Yellowstone's integrity will be protected for
generations to come."

**********************end*************************


*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.

______________________________________________

************************************

President/Director
The Edmonds Institute
20319-92nd Avenue West
Edmonds, Washington 98020
USA
phone:  001- 425-775-5383
fax: 001- 425-670-8410 (Please mark the fax "for Burrows".)
email:  beb@igc.org

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