By Jon Luoma, from the Spring 2008 issue of Environment: Yale magazine.

The “mountain men” of the American West were fur trappers, adventurers and, often enough, known spinners of extravagant Bunyanesque yarns. So no one really knew whether to believe their stories of a fantastical land around the intersection of the boundaries of present-day Wyoming, Montana and Idaho–a vast “hell” of steaming hot streams, kettles, lakes and roaring “steamboat springs” that spewed water and vapor into the air.

There might have been more than traces of exaggeration in some of the stories (like the one about cooking up whole haunches of elk in boiling lakes), but by the Civil War era, new, more-reliable explorers were confirming the region’s geologically fantastical setting. Col. Walter Washington deLacy, leading a group of gold prospectors through the region in 1863, wrote of a multitude of geysers and “intensely hot” springs–“boiling up in the middle,” he wrote, “many of them of very large size.”

The stories came from the place the world would later know as Yellowstone, destined to be America’s first national park. Today the 2.2-million-acre park, crown jewel of the national park system, remains a mostly intact wild ecosystem, a land of mountain and meadow, famously home to grizzly bears and bison, bighorn sheep and, thanks to a successful 1990s reintroduction, even healthy packs of long-absent grey wolves. And yes, it is the site of some of Earth’s most wondrous geologic thermal features, some 10,000 of them, astoundingly more than half of all the thermal features on the planet.

None of deLacy’s 1860s prospectors managed to get rich taking precious metals out of Yellowstone. And, of course, mining, logging and every other form of conventional resource exploitation is banned in the park. Yet at about the time this issue appears in print, the National Park Service is expected to issue a long-awaited final Environmental Impact Statement (EIS) aimed at defining the terms by which a newer, higher-tech version of prospector will be allowed to extract–some would say “exploit” or even “pirate”–certain riches from Yellowstone and, by extension, any of the national parks.

At issue is bioprospecting, which has provoked a host of questions about how private interests might use for commercial gain life forms extracted from parks that are held in public trust.

At the center of this controversy lie Yellowstone’s thermal features. Five years after deLacy’s party reached the area, another group of gold prospectors reconfirmed the wonders and reported what seemed commonsensical, that in these steaming waters “life could not long be sustained.” For fully a century, science concurred that waters so hot must naturally be sterile. But in 1966, Indiana University scientist Thomas Brock and his assistant, an undergraduate named Hudson Freeze, found–against all reason–life indeed. In the 170º F waters of Mushroom Spring, they found a thriving population of pink bacteria uniquely adapted to an aquatic environment far hotter than anyone had thought survivable.

“It was an amazing discovery of the limits of life,” says Tom Olliff, chief of the Yellowstone Center for Resources.

Perhaps more amazing is the scientific and technological revolution that Brock and Freeze’s discovery eventually unleashed. They named their newly discovered life form Thermus aquaticus, now often called simply Taq.

“Privatizing life in a place like Yellowstone is like privatizing the sky. … We didn’t save Yellowstone to make a profit. We saved it because it has greater value.”
Jonathan King

Fully 20 years after their discovery, Kary Mullis, a scientist at the U.S.-based Cetus Corp., would isolate from Taq an extremely heat-tolerant enzyme that made it possible for his company to commercialize a process he had invented for DNA replication, but which had been stalled because it subjects genetic material to otherwise intolerably high temperatures. Called polymerase chain reaction, the process would win Mullis the Nobel Prize, and his “PCR machine” would become the core technology leading to an explosion of DNA replication and analysis in fields ranging from biotechnology, to genetics, to criminology. When you hear of scientists cracking the human genome, or definitively identifying a new species, or exonerating an innocent defendant based on DNA, polymerase chain reaction and that key enzyme isolated from Yellowstone’s tiny T. aquaticus are at the heart of it all.

Brock and his young student Freeze were simply conducting basic field research. Surely they hadn’t set out to be bioprospectors or to make any corporation rich. But their discovery turned out to be a commercial mother lode. Cetus paid the American Type Culture Collection in Washington, D.C., where the original samples of Taq were stored, a mere $35 for its original microbial sample. The company would later sell its patents to the Swiss pharmaceutical giant Hoffmann-La Roche for $300 million. By the 2000s, annual sales of Taq alone would reach $100 million.

Yet neither Yellowstone National Park, nor the park system in general, nor the people of the United States received even a dime as a result of the discovery. According to Olliff, the entire affair would come to be known both inside the National Park Service and out as “the great Taq rip-off.”

So perhaps it’s easy to understand why, in 1996, during the Clinton administration, the National Park Service’s director decreed that the same sort of rip-off should never happen again, that in the future, the parks and the American people would at least receive reasonable compensation for discoveries made using park resources.

There was plenty of reason to believe that more remarkable discoveries with commercial value could be in the offing. The T. aquaticus discovery in Yellowstone and the subsequent exploitation of Taq have led to a soaring interest in an array of other microbes, which also thrive in seemingly impossible environments, all generally classified as “extremophiles.” There is, for instance, “Conan the Bacterium,” an organism that can tolerate 10,000 times more radiation than a human. A few extremophiles have already been commercialized. In extremely alkaline lakes in Africa, Palo Alto (Calif.)-based Genencor found one that’s become an important additive in the popular laundry detergent, Tide, and another that is used in IndiAge, a commercial product to artificially fade denim blue jeans–hardly the stuff of Nobel Prizes but among the developments that have helped make Genencor the world’s second-largest biotechnology company.

In 1997, Yellowstone National Park signed the Park Service’s first agreement under a new, so-called benefits-sharing policy with the San Diego-based Diversa Corp. The company had already been collecting samples of life forms in the park under standard research permits. But the new agreement was designed to prevent more bioprospecting rip-offs.

It provided $100,000 in cash compensation to the park and another $75,000 per year in DNA analysis equipment and related training for park staff over five years. The agreement also stipulated that, this time around, if the company ever commercialized one or more products developed from its research in the park, the National Park Service would receive royalties of up to 10 percent.

Yet the agreement never went into effect. Shortly after both parties signed the agreement, a consortium of policy groups focused on biotechnology and on the environment, including the Edmonds Institute, the International Center for Technology Assessment and the Alliance for the Wild Rockies, sued the National Park Service, insisting that the agreement was a “backroom deal” that would “allow the commercial exploitation of Yellowstone.” The suit claimed that the agreement violated existing rules prohibiting commercial use of national park resources. In a letter to supporters, the Edmonds Institute’s director, Beth Burrows, quoted MIT molecular biologist Jonathan King, who said, “Privatizing life in a place like Yellowstone is like privatizing the sky. … We didn’t save Yellowstone to make a profit. We saved it because it has greater value.”

In April 2000, a federal district court judge in Washington, D.C., dismissed the suit itself, agreeing with National Park Service arguments that any profits to Diversa would come from its own discoveries related to the life forms, not from the commercialization of the life forms themselves. But the court also left intact a ruling it had made a year earlier–that the entire idea of benefits-sharing arrangements was such a dramatic change in policy that the park would have to prepare a detailed federal EIS.

Yellowstone staff, who took the lead on this Park Service-wide EIS, took until late 2006 to complete a draft version. Over the next few months, 10,000 public comments poured in, many of them letters objecting to the “preferred” option identified in the EIS: continuing bioprospecting but with benefits sharing agreements in place. The version to be published this spring will be a “final EIS.” Park officials readily acknowledged (as this issue was going to press) that the final version will concur that benefits sharing, largely as envisioned in the pioneering Diversa agreement more than a decade ago, will be enshrined as the park’s bioprospecting policy for the future.

Burrows said late last winter that she wasn’t willing to predict what her group, which has led opposition to the benefits-sharing arrangements, will do if the final EIS is issued without substantial restrictions, but she did acknowledge that further legal action could be an option. And she insists that a host of questions remain unresolved.

“These are living organisms in a park that belongs to the public,” she says. “Are they there to be disposed of and developed? Can we be sure that if this happens, it’s going to be done in a manner that protects the parks for the future? In the future, are national park employees going to be stewards of profits for corporations, rather than stewards of resources that belong to all the people of the United States?”

“We consider it to be scientific research, just like the other kinds of scientific research we allow by permit in the parks.” –Tom Olliff

Yellowstone’s Olliff dismisses such concerns. “We just don’t consider it to be a commercial use of the park,” he says. “We consider it to be scientific research, just like the other kinds of scientific research we allow by permit in the parks, where you take your samples to your lab and learn something from them.”

If any result becomes a commercial product, he says, “It’s not the park’s resources that will end up belonging to anyone. People who take samples will be able to own only what they’ve learned. They’ll be able to patent their intellectual property, but the resources themselves will still belong to the parks.”

Beyond that, he says, the 2000 federal court ruling stands. “With or without benefits sharing, the courts have made it clear that bioprospecting in the parks is legal.”

Indeed, bioprospecting on protected public lands has continued, at least in Yellowstone, in the absence of a policy for benefits sharing. Already, one researcher has garnered a patent for a microbe found in Yellowstone that can oxidize sulfide, a pollutant in groundwater. Others are working with microbes that may be able to convert cellulose in agricultural wastes into ethanol.

And Olliff insists that the parks have much more to gain than they stand to lose–benefits that certainly could include additional funds for research in cash-strapped parks, but also expertise than can be loaned or shared. Yellowstone, for instance, has no microbiologists on its scientific staff. But in recent years, it has been able to work informally with scientists at Diversa to obtain a DNA analysis of samples collected from the bottom of Yellowstone Lake, discovering nine new microbial life forms in the process.

Michael Colby, in the online version of the newsletter Counterpunch, warned darkly of a future where commercial “extraction machines” mine the parks’ living resources, but Olliff insists that nothing of the kind will be allowed. He notes that sampling heat-tolerant microbes, say, in a steamy pool has often amounted to filling a liter-sized bottle with hot water, which he calls “a smaller impact on resources than the average backpacker has.”

None of which has proven very reassuring to opponents, who point to the original Diversa agreement negotiated “secretly,” or at least absent any open public involvement. Indeed, the preferred options as outlined in the new EIS include provisions to prevent release of any corporate information contained in benefits- sharing agreements deemed to be proprietary. That could include the kinds of important new scientific discoveries a noncommercial scientist ordinarily would publish and share with the world.

But what seems to gall many critics most is the idea that protected resources in a place like Yellowstone, world-class in their uniqueness, could through any kind of mechanism become a version of private property, intellectual or otherwise–a sense, as journalist Geov Parrish put it when the draft version of the EIS was released late in 2006, that “absolutely everything is now for sale in our mercenary culture.”