Benefits-Sharing in the National Parks
Environmental Impact Statement
NPS Benefits-Sharing and the Law
There are a variety of laws and policies that relate to Benefits-Sharing and the National Park Service. Following is a summary of those that are most significant:
The NPS Organic Act: Congress created the National Park Service in 1916 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"
The National Parks Omnibus Management Act of 1998 (NPOMA) authorizes "negotiations with the research community and private industry for equitable, efficient benefits-sharing arrangements" in connection with research conducted in national parks. This law specifically allows the NPS to enter into benefits-sharing agreements with the research community. In addition, NPOMA mandates increased scientific research in the national parks and the use science in park management decisions. The law encourages the national parks to be places for scientific study by public as well as private sector researchers, and mandates long-term inventory and monitoring programs that provide baseline information and document trends relating to the condition of park resources.
The Federal Technology Transfer Act of 1986 (FTTA) established a framework for partnerships between federal laboratories and the private sector. One of the mechanisms authorized by this law is a cooperative research and development agreement (CRADA). A CRADA is defined by the FTTA (15 USC § 3710a et seq.) as "any agreement between one or more Federal laboratories and one or more non-Federal parties under which the Government, through its laboratories, provides personnel, services, facilities, equipment or other resources with or without reimbursement (but not funds to non-Federal parties) and the non-Federal parties provide funds, personnel, services, facilities, equipment, or other resources toward the conduct of specified research or development efforts which are consistent with the mission of the laboratory . . . "
CRADAs provide a framework under which private companies and other research collaborators can contribute financial resources and expertise to a federal laboratory facility to augment its own research in exchange for rights in any resulting valuable discovery arising from the research. CRADAs are also authorized by Executive Order 12591, which requires federal agency heads to delegate authority to federal laboratories to enter into CRADAs with other federal laboratories, state and local governments, universities, and the private sector. In 1997, 13 federal agencies were engaged in more than 3,500 CRADAs with the private sector.
The Department of the Interior's CRADA policy was outlined in May 1996 in the Department's handbook entitled Technology Transfer: Marketing Our Products and Technologies (A Training Handbook for the US Department of the Interior).
The Code of Federal Regulations require a research permit for research activities in the national parks (36 CFR 2.5). Research permits stipulate various terms and conditions to protect park resources from impacts associated with the research. In addition, sale or commercial use of natural products is prohibited by regulation (36 CFR 2.1). Thus, only information and inventions developed after the conclusion of research specimen collection and analysis may be used commercially - not the specimens collected from the park.
The NPS 2001 Management Polices state that "Extractive use of park resources for commercial purposes is prohibited except when specifically authorized by law or in the exercise of valid existing rights. The collection of non-living or living material, or parts thereof, to support research that may lead to the development of commercial products is permitted only in limited circumstances, and is managed under appropriate federal authority." (4.2.4)
The Management Policies further direct the NPS to "encourage appropriately reviewed natural resource studies whenever such studies are consistent with applicable laws and policies." The Management Policies specifically prohibit repeated collection or harvesting: "The repeated collection of materials to ensure a continuing source of supply for research or propagation is prohibited." (4.2)
The National Environmental Policy Act of 1969 (NEPA) requires consideration of the environmental effects of proposed federal actions. NEPA procedures ensure that environmental information is available to public officials and members of the public before decisions are made and actions are taken. This Benefits-Sharing Environmental Assessment is being prepared in accordance with NEPA.
The Natural Resource Challenge is a recent NPS program to revitalize natural resource management in the national parks. The Natural Resource Challenge recognizes the critical role of science in the parks, "The long-term preservation of park natural resources makes parks reservoirs of information of great value to humanity. Thus, in addition to the use of science as a means to improve park management, parks can and should be centers for broad scientific research and inquiry. Research should be facilitated in parks where it can be done without impairing other park values. Grants, logistical support, cooperative studies, and other means of facilitating this wider role should be instituted within, or near, a network of parks broadly representative of regional systems. These programs should be developed and operated in collaboration with universities and other science organizations."
Federal Court Approves Yellowstone Benefits-Sharing
In 1998, a lawsuit was filed in federal court challenging the Yellowstone/Diversa cooperative research and development agreement (CRADA). This lawsuit alleged that the Yellowstone/Diversa CRADA violated the Federal Technology Transfer Act, the NPS Organic Act, the Yellowstone National Park Organic Act, and the National Environmental Policy Act (NEPA), among other things. In an initial ruling, Judge Royce Lamberth ordered NPS to complete an environmental assessment. In his final judgement, Judge Lamberth dismissed the case with prejudice, ruling that benefits-sharing agreements are consistent with the NPS Organic Act, the Yellowstone National Park Organic Act. The National Parks Conservation Association filed a "friend of the court" brief on behalf of NPS, supporting NPS' position.
Read Judge Lamberth's Decision (1.6m pdf file).