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