Controversy over Yellowstone's biological resources.
(Yellowstone National Park)(People, Property, and Bioprospecting); ( Environment ) Chester, Charles
people, property, and bioprospecting
In September 1995, more than 100 microbiologists, park administrators, and industrial
biotechnologists came together in Yellowstone National Park to discuss the ecology and
evolution of the thermophilic ("heat loving") microorganisms that live in the park's numerous
thermal features.(1) Their discussions were not limited to scientific issues, however; they also
addressed the increasingly important commercial use of the park's thermophilic biodiversity.
Microorganisms that live in high- temperature environments have proven useful to industry in a
number of ways, most importantly DNA amplification. Commercial use of such resources raises
two important questions: Is it permitted under National Park Service regulations? And does the
park deserve some sort of compensation for it?
Yellowstone's microorganisms also entail two fundamental lessons for environmental
management. First, they offer policymakers a potential "win-win-win" situation: Under the right
conditions, conservation, science, and economic development can all benefit from their use.
Second, in protecting biodiversity the national parks preserve options for the future, including
uses that cannot possibly be foreseen by the current generation. This article examines the issues
attending humanity's use of biodiversity from the standpoint of one particularly valuable
microorganism discovered at Yellowstone. After reviewing the commercial significance of this
and other microorganisms, it addresses two key questions: the legality of exploiting resources
from national parks and the best ways to compensate parks for the use of those resources.
Bioprospecting and Microorganisms
In popular usage, the term biodiversity conjures up images of rainforests, coral reefs, and
"charismatic" animals such as pandas and whales.(2) But the greatest concentration of
biodiversity by far - microorganisms - remains largely unexplored. Microorganism, a generic term
for life invisible to the human eye, encompasses an enormous variety of life, including algae,
bacteria, fungi, protozoa, and viruses. To date, scientists have identified more than 150,000
species of microorganisms. They estimate the total number of microbial species to be between
several hundred thousand and one million.(3)
Since the dawn of agriculture and anthropogenic fermentation, humans have depended on
microorganisms for a wide range of functions. Modern uses include producing antibiotics and
vitamins, decomposing sewage, and breaking down oil. Microorganisms are used in hundreds of
commercial products with a total value in the tens of billions of dollars.(4) Scientists are now
searching for useful microorganisms in some of the most inhospitable places on the planet - hot
springs, oil wells, Arctic ice, desiccating salt marshes, and steaming vents on the ocean floor, all
of which can harbor unusual microbes. Such organisms are already responsible for new products
and social amenities, and their potential appears great.(5)
The search for microbial organisms is part of a larger phenomenon known as biodiversity
prospecting or bioprospecting. Defined as the "exploration of biodiversity for commercially
valuable genetic and biochemical resources," bioprospecting is not new.(6) What is new, though,
is the increasingly sophisticated use of biotechnology to discover uses for biodiversity, along with
the questions (both technical and philosophical) that it is raising. Conservationists, for instance,
increasingly argue that those who benefit from bioprospecting should "pay nature back" by
protecting wildlands and funding conservation activities.(7) Otherwise, they say, bioprospecting
will become just another wave of exploitation, leaving habitat loss and extinction in its wake. As a
1993 report on bioprospecting from the World Resources Institute warns,
[l]ike the nineteenth-century California gold rush or its present- day counterpart in Brazil, this
"gene rush" could wreak havoc on ecosystems and the people living in or near them. Done right,
though, bioprospecting can bolster both economic and conservation goals while underpinning the
medical and agricultural advances needed to combat disease and sustain growing human
numbers.(8)
In recent years, bioprospecting has tended to concentrate on tropical rainforests because the
diversity of plants and insects in those areas makes them an obvious place to search for new
genetic resources and chemical compounds. But scientists have also found important genetic
resources in the temperate zone. One notable example is the Pacific yew tree (Taxus brevifolia).
In 1967, researchers at the National Cancer Institute found that an extract from the bark of this
tree (which they named "taxol") was effective against leukemia in mice. In 1993, 25 years after it
was first identified as a potential anticarcinogen for humans, the U.S. Food and Drug
Administration approved taxol for general use in women with advanced ovarian cancer. Before
the discovery of taxol, however, loggers had indiscriminately cut down and burned Pacific yews
to gain access to more profitable timber.(9)
Those who support the Endangered Species Act have used taxol as a classic example of the
value of protecting biodiversity. There is another species, however, that has transformed the
human world far more than the Pacific yew but without receiving nearly as much attention. It is
obscure primarily because it is microscopic, has an unusual habitat, and unlike the Pacific yew, is
not endangered. That species is a bacterium first discovered in a hot spring at Yellowstone
National Park.
Biodiversity Prospecting at Yellowstone
In 1872, Congress established Yellowstone National Park expressly to preserve the area's
"geothermal marvels" (geysers, hot springs, mud pots, and fumaroles) and the Grand Canyon of
the Yellowstone River.(10) Old Faithful, Yellowstone's unofficial symbol and an important icon
for the United States, is but one of approximately 10,000 geothermal features situated within or
near the park. As a "World Heritage Site" (one of 469 places in the world that the United
Nations Educational, Scientific and Cultural Organization has identified as having significant
cultural or natural value), Yellowstone has remained "first and foremost a geological park - a
perfect laboratory for the study of heat flow within the earth."(11)
In creating the 3,500 square mile park, Congress was aware that it was also protecting a large
number of flora and fauna that were disappearing from other parts of the country. The members
could not have known, however, that they were preserving important thermophilic
microorganisms along with the park's elk, grizzly bears, bald eagles, Rocky Mountain rams, and
bison.(12) These microorganisms can withstand temperatures greater than 70 [degrees] C (about
160 [degrees] F) - a trait that humans have been able to use to economic advantage.(13)
Reporter Michael Milstein, who has closely followed the fate of Yellowstone's microorganisms
since 1993, has observed that these microbes comprise an "American rain forest full of biological
mysteries. Even the tiniest species can have immense worth."(14)
Thermus aquaticus is a thermophile that has generated immense wealth, both economic and
societal. Its history reveals the complexities inherent in bioprospecting. In 1966, microbiologist
Thomas Brock discovered T. aquaticus in Mushroom Springs, one of Yellowstone's thermal
pools. He deposited it in the American Type Culture Collection (ATCC), a national repository
for microorganisms, where it resided for the next two decades. Meanwhile, in 1983, scientists at
the Cetus Corporation, a relatively new biotechnology company in Emeryville, California,
developed a groundbreaking process known as a polymerase chain reaction (PCR).(15) A
polymerase is an enzyme that repairs and replicates DNA; the Cetus process facilitated the
production of this enzyme, allowing scientists to create large batches of identical DNA from
minute specimens. There was, however, one problem: The original polymerase was destroyed
during PCR's cyclic heating stages. Cetus scientists thought that a thermophilic microorganism
might rectify this problem by producing a polymerase capable of surviving the heating stages.
They ordered T. aquaticus from ATCC, and after three weeks of intense work found that it
"worked like a charm."(16) By 1989, the polymerase enzyme from T. aquaticus was enabling
PCR to efficiently generate large samples of DNA for analysis. As Yellowstone's research
director John Varley noted, this development allowed scientists to "turn a needle in a haystack
into a stack of needles - a sort of biotech photocopying machine."(17)
Such a highly revolutionary process appeared to offer significant advances in a number of fields,
including human and veterinary diagnostics, molecular research, and forensic identification. James
Watson, co- discoverer of DNA's structure, pronounced that the polymerase chain reaction
"ranked with cloning and DNA sequencing as an indispensable tool in the molecular biologist's
armamentarium."(18) Consequently, Cetus took out patents on both the PCR process and the
enzyme from T. aquaticus.(19) These patents were upheld by court rulings in an extensive suit
brought by DuPont. Soon after the suit, however, Cetus found itself in financial straits and sold
the patents to the Swiss pharmaceutical firm Hoffman-LaRoche for $300 million and royalties
from sales. Today, Hoffman-LaRoche and its partner Perkin-Elmer are reportedly earning more
than $200 million a year from PCR; by the year 2000, they could be earning as much as $1
billion annually.(20)
In addition to exploiting T. aquaticus, scientists have found industrial uses for at least eight other
thermophilic species. These uses include converting cellulose into ethanol, oxidizing sulfide,
producing enzymes that make perfume and lactic acid, and producing the enzyme pectinase,
which inhibits cloudiness in apple juice and wine. Scientists believe that thousands of other
microbes - many of them potentially useful - have yet to be discovered in Yellowstone.(21) The
rising number of microbiological research projects in the park reflects this. In 1993, there were a
total of 225 research projects at Yellowstone, on subjects ranging from geology and archaeology
to aquatic ecology and mountain lions. Twenty-eight of these projects focused on microbiology.
The number rose to 34 out of 223 projects in 1994 and to 39 out of approximately 200 projects
in 1995. Microbiological researchers represent at least 5 private firms, 2 government agencies,
and 23 university programs (it is unclear, however, how many of the academic institutions have
formal or informal arrangements with industry).(22)
This growing interest in Yellowstone's microbes has forced park managers to address two
important questions: Do national park regulations permit such bioprospecting in the parks?(23)
And, if they do, can the National Park Service obtain compensation for the commercial use of
resources found to have value?
Bioprospecting and the Law
Yellowstone, the world's very first national park, heralded a new ideal of preservation. This ideal
was given concrete form by the National Park Service Organic Act, adopted in 1916, which
stated that the fundamental purpose of U.S. national parks was "to conserve the scenery and the
natural and historic objects and the wild life therein and to provide for the enjoyment of the same
in such manner and by such means as will leave them unimpaired for the enjoyment of future
generations." (24) As often noted, the language of the act is highly ambiguous if not, in fact,
completely self-contradictory:
Such a mandate creates inevitable tensions and potential conflicts among seemingly incompatible
goals. . . . An extreme interpretation of potential use of parks . . . could include all forms of
recreation, commercial development, and even resource extraction. At the opposite extreme,
leaving parks "unimpaired" could be interpreted as prohibiting any form of development and even
locking out visitors. Between those two extremes, pursuing both goals - use and preservation - is
the crucial, continuous challenge.(25)
In other words, the preservationist ideal of the national parks is by no means sacrosanct. The
Park Service permits individual parks "to allow such diverse pursuits as recreational fishing, sport
hunting, trapping, off-road vehicle use, golf, and snowmobiling within park boundaries."(26)
Many of these activities benefit significantly from access to the national parks. One group that has
benefited greatly is the concessioners, who have provided services in the parks since the
establishment of Yellowstone. Concessioners were relatively autonomous until passage of the
Concessions Policy Act in 1965, which gave them long-term monopolies (up to 30 years) in
return for payment of royalties to the federal government (not, as many conservationists and
others interested in protecting biodiversity would prefer, to the individual park or the Park
Service).(27)
Concessioners' activities, of course, do not entail extraction of any material resources from a
park. Indeed, park regulations specifically prohibit the taking of plants, fish, wildlife, rocks, or
minerals.(28) There is one important exception to this rule, however: collecting specimens. Under
this exception, the Park Service allows representatives of a "reputable" scientific or educational
institution or government agency to collect specimens "for the purpose of research, baseline
inventories, monitoring, impact analysis, group study, or museum display." (29) The regulations
require that this activity not harm either the resource or the environment and that research results
be made available to the public. In the case of biological specimens, both the specimens and the
genetic information inherent in them are in the public domain as a matter of law.(30)
Current regulations neither prohibit nor authorize the commercial use of research specimens. As
T. aquaticus shows, however, genetic information from specimens may lead to commercially
valuable products even when those specimens were originally collected for purely scientific
purposes. In such cases, the products do not require extraction of park resources per se, merely
the use of information obtained under specimen collection permits - a contingency that was not
foreseen when the regulations were written in 1983.
The regulations are also silent on the issue of intellectual property rights. Where a research
specimen leads to a new commercial product, the developer has a particularly strong incentive to
obtain a patent on the innovation.(31) Park research regulations do not prohibit developers from
filing patent applications in cases of this sort, even though the information obtained from park
specimens is entirely in the public domain. In fact, because patents require full public disclosure
of the methods and materials used in creating a product, they are completely consistent with the
public domain requirement.(32)
The use of park resources for commercial purposes has been addressed in a number of papers,
meetings, media reports, an international conference, and an important workshop. Although the
Park Service has yet to adopt a coherent policy in this area, it is considering a draft revision of
the regulations to address the issue of commercial use. The proposed revision also considers the
question of compensation - that is, what (if anything) the parks deserve for offering a haven to
rare and unusual resources.
Compensation
The decision to require compensation for the commercial use of research specimens ultimately
lies with the Park Service, the U.S. Congress, and, at least in theory, the public. The justification
for compensation is clear: Conservation can be fairly costly, and protecting the parks from
degradation, overcrowding, and various other threats requires financial resources. The best way
to handle compensation is not clear, however. In this regard, there are several important issues to
consider.
First, instituting compensation will require the Park Service to develop the legal and technical
capability to monitor industry's acquisition and use of research specimens. Determining that a
particular specimen came from a national park may not always be straightforward. In the instance
of T. aquaticus, for example, Cetus acquired the microorganism from a collection in which it had
been deposited some 20 years before. Cetus scientists did not go to Yellowstone because it was
much simpler just to mail order the bacterium, a practice that is common in microbiology. Though
not insurmountable, problems of this nature could complicate Park Service efforts to trace the
origins of microbes. One potential solution to them is to establish working relationships with
influential organizations such as ATCC.
Second, the Park Service will need the technical ability to resolve competing claims about the
geographic origin of research specimens. Only a few years after Brock discovered T. aquaticus
in Yellowstone, he found strains of the bacterium in hot water taps, water heaters, and some
thermally polluted waters.(33) While it was research at Yellowstone in the 1960s that led to the
discovery of T. aquaticus, the same discovery could have been made elsewhere at another time
(though when and where would be difficult to say). To contend with potential multiple-source
problems of this sort, a viable system of compensation will have to establish a strong connection
between a particular commercial product and the corresponding scientific discovery.
Third, the Park Service will have to counter the common argument that the parks already benefit
from new commercial products through higher tax receipts from corporations. Of course, it is
quite doubtful that such relatively small tax revenues will lead to tangible improvements in the
national parks. Furthermore, there is substantial precedent for requiring compensation from those
who benefit from the parks directly. For example, visitors to the parks have to pay entrance fees
in addition to income taxes. Agencies such as the Bureau of Land Management and the Forest
Service also charge fees for the use of specific resources (though one may argue that these fees
are woefully inadequate).
Fourth, any system of compensation will have to at least cover the costs incurred in administering
it. This issue arises because there is no guarantee that researchers will find other commercially
valuable resources, much less anything as profitable as T. aquaticus. If the amount of
compensation turns out to be less than the sums needed to obtain it, compensation will harm the