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EDMONDS INSTITUTE v. BABBITT

April 12, 2000

EDMONDS INSTITUTE, ET AL., PLAINTIFFS,
V.
BRUCE BABBITT, SECRETARY OF THE INTERIOR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Lamberth, District Judge.

MEMORANDUM OPINION

This matter comes before the court on the parties cross-motions for partial summary judgment. Plaintiffs, three environmental advocacy organizations and a frequent visitor to Yellowstone National Park ("Yellowstone" or "Park"), challenge as arbitrary and capricious the Department of the Interior's ("Interior") entry into a research agreement with a private biotechnology company for the "bioprospecting" of microbial organisms from geysers and other thermal features in Yellowstone. Upon consideration of the motions, the oppositions thereto, the relevant record, and the applicable law, the court GRANTS defendants' motion for summary judgment and DENIES plaintiffs' motion for summary judgment.

I. BACKGROUND

This court has previously detailed the factual background underlying the present dispute. Edmonds Institute v. Babbitt, 42 F. Supp.2d 1, 4-9 (D.C. 1999). Accordingly, the court now provides only an abbreviated review the salient facts and procedural history of this case.

A. The Yellowstone-Diversa CRADA

Yellowstone is the nation's oldest national park. To commemorate its 125th anniversary, defendants hosted a ceremony on August 17, 1997, which was attended by top environmental policymakers, including Vice President Al Gore, Secretary of the Interior Bruce Babbitt, National Park Service Director Robert Stanton, and Yellowstone Superintendent Mike Finley. At the ceremony, it was announced that the federal government had entered into a novel contract with San Diego-based Diversa Corporation, by which Diversa would obtain a nonexclusive right to "bioprospect"*fn1 microbial organisms in Yellowstone, in exchange for an agreement to share with Yellowstone a portion of any financial returns generated by commercial applications or products developed from these research materials.

This novel agreement, officially termed a Cooperative Research and Development Agreement ("CRADA"), was the first of its kind to involve a national park. The Statement of Work in the CRADA explains how Yellowstone and Diversa will cooperate in researching and cataloguing the Park's biological diversity, primarily in the Park's thermal features such as geysers, hot springs, fumaroles, and mud pots, as well as in Yellowstone's "alpine tundra ecosystems, subalpine forests; riparian habitats, sedge marshes, bogs, swamps, streams and lakes." CRADA, Statement of Work at 2. Following an initial survey, sites will be "prioritized and systematically sampled by [Diversa] scientists," using techniques to be "jointly selected by YNP and [Diversa] to ensure that there is no significant impact to park resources or other appropriate park uses." Id. Once raw samples have been extracted from the selected sites, nucleic acids will be isolated, purified and used to create a library of genetic information. Id. at 2-3. The resulting gene libraries will be the starting point for the discovery and cloning of biocatalytic and bioactive compounds, which will be evaluated for potential commercial applications. Id. These libraries of genetic information will also be available to Park scientists for their own research. The CRADA and Statement of Work explicitly state that all activity carried on under the agreement will be in accordance with applicable law, including Yellowstone's management policy. According, to conduct the research under the CRADA, Diversa applied for and was issued a Research Authorization/Collection Permit, which authorized the Collection of certain biological materials from Yellowstone. Since 1994, prior to its entry into the CRADA, Diversa, under its previous name Recombinant Biocatalysis, Inc., had already been conducting the same sort of sampling from Yellowstone, pursuant to permits issued in accordance with Park regulations. The main difference, however, is that prior to the CRADA, the company was under no obligation to share any of the economic or other benefits that might result from its research on Park resources.

Thus, perhaps the most notable feature of the CRADA is the consideration that Yellowstone stands to receive in exchange for access to its biodiversity. Defendants have disclosed that Diversa will make annual payments of around $20,000 to the defendants, as well as provide research equipment and other support for Yellowstone's use and benefit. More importantly, however, Diversa will pay royalties to Yellowstone on any future commercial use or product derived from the company's bioprospecting activities in the Park. Although the specifics are not public, Yellowstone has indicated that it will receive royalties of between .5% and 10% depending upon the nature of the raw material and the final product. By virtue of the CRADA, Yellowstone will share in any revenues generated by future beneficial applications or products developed from Diversa's research at Yellowstone.

B. Bioprospecting in Yellowstone

Notwithstanding the novelty of the Yellowstone-Diversa CRADA itself, this agreement is not the first time that the National Park Service has permitted scientific research and collection of microbial specimens from Yellowstone's thermal features. To the contrary, the earliest research permit authorizing collection of microbial samples from Yellowstone was in 1898. Indeed, in recent years, the number of annual requests by researchers for access to Yellowstone has averaged 1,500, with some 250-300 research permits issued each year (between 40 and 50 of which are for microbial research projects). Declaration of Michael Soukoup ("Soukoup Decl."), at ¶ 8 Exhibit 1 to Defendants' Motion to Dismiss and for Summary Judgment. National Park Service regulations govern this permit system and ensure that research activities are consistent with the Yellowstone and Interior's overall goals.

Prior to the CRADA, Diversa or other researchers were free to remove any specimen within the purview of their permit and develop it as they wished. If such development led to commercial uses, the Park Service never saw any proceeds from the derivative products. Thus, recognizing that resources yielding potentially valuable properties were being removed from Yellowstone with no remuneration to Yellowstone or the American people, see Soukup Decl. ¶ 9, officials at Interior began to consider a resource management scheme, patterned on the successes of Costa Rica and other nations, which would use bioprospecting to provide funds and incentives for the conservation of biological diversity. To that end, the defendants opened negotiations in 1995 with the Diversa Corporation and other biotechnology companies to explore possible bioprospecting contracts. These potential agreements would be drafted as cooperative research and development agreements (CRADA) under the Federal Technology Transfer Act of 1986, which authorizes federal laboratories to enter into CRADAs with nonfederal entities to facilitate the sharing of research developed in conjunction with government scientists. By the fall of 1996, Diversa and the defendants had begun drafting a CRADA that would permit the collection of raw environmental materials from Yellowstone. The final version of the CRADA was signed by National Park Service Director Robert Stanton and Yellowstone Superintendent Mike Finley on May 4, 1998.

C. Procedural History

Plaintiff Edmonds Institute is a nonprofit public interest organization based in Edmonds, Washington. The group advocates the regulation of biotechnology and the maintenance and protection of biodiversity. Plaintiff Alliance for the Wild Rockies is a nonprofit organization committed to the preservation and protection of the native biodiversity of the Northern Rockies Region. Plaintiff International Center for Technology Assessment (CTA) is a Washington, D.C.-based nonprofit corporation focused on the environmental, economic, and ethical issues surrounding the biotechnology industry (including bioprospecting), particularly as it relates to the national parks. Finally, plaintiff Phil Knight is a resident of Bozeman, Montana who allegedly visits Yellowstone some twelve times a year to hike, photograph, and otherwise enjoy its aesthetic and recreational qualities.

Defendants, of course, are Secretary of the Interior Bruce Babbitt, sued in his official capacity, and Robert Stanton, Director of the National Park Service, ...


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