Final frontier for lawyers -- property rights in space / Land claims, commercial schemes and dreams have legal eagles hovering

The U.S. Court of Appeals for the Ninth Circuit of San Francisco recently dismissed a lawsuit by Gregory Nemitz for a claim that he owns an asteroid that NASA landed on. Nemitz talks about his business card for Orbital Development, his aerospace consulting business, that was flown in the Mir Spacestation in 1996, from his Carson City, Nev. home on Friday, Oct.14, 2005. Photo by Cathleen Allison less The U.S. Court of Appeals for the Ninth Circuit of San Francisco recently dismissed a lawsuit by Gregory Nemitz for a claim that he owns an asteroid that NASA landed on. Nemitz talks about his business card for ... more Photo: CATHLEEN ALLISON Photo: CATHLEEN ALLISON Image 1 of / 3 Caption Close Final frontier for lawyers -- property rights in space / Land claims, commercial schemes and dreams have legal eagles hovering 1 / 3 Back to Gallery

Space buffs are dreaming about vast land developments on the moon, planets and asteroids -- and wherever people start making land claims, the lawyers can't be far behind.

Consider this: This year, in a virtually unnoticed decision, the U.S. Court of Appeals for the Ninth Circuit in San Francisco dismissed a lawsuit by a Nevada man who claims he owns asteroid 433, a mountainous celestial rock also known as Eros.

After NASA landed a robotic spaceship on Eros in 2001, online entrepreneur and space enthusiast Gregory W. Nemitz of Carson City, hoping to set a legal precedent for future cosmic exploration, informed the space agency that he owned Eros. He had previously filed his claim to ownership of the asteroid at an online registry for celestial land claims, which a Seton Hall University School of Law professor started in the 1990s to stir discussion of space-related legal issues.

After NASA landed its probe on Eros, Nemitz asked NASA to pay a "parking/storage fee" of $20 for one century, plus late-payment fees. The agency refused. NASA general counsel Edward Frankle informed Nemitz that his property claim "of a celestial body ... appears to have no foundation in law." In response, Nemitz sued NASA and the U.S. State Department.

In April 2004, the U.S. District Court in Reno tossed out Nemitz's suit "for lack of a recognizable legal theory" behind his claims. On Feb. 10, the San Francisco-based Ninth Circuit issued a terse ruling, without explanation, that upheld the district court decision.

Disillusioned by the decision, Nemitz -- a nonlawyer who argued the case himself without the aid of an attorney -- plans no further legal action. But he's pretty mad about what he regards as a federal transgression of his rights.

"I have a right as a human being to make a claim for anything that is not owned," Nemitz told The Chronicle on Thursday. "I think claiming a single asteroid is a reasonable claim -- (Eros) is about the size of Lake Tahoe in dimension. It's not like you're claiming a planet, and you're not claiming you're ruler of the universe."

Bizarre though it sounds, the case of Nemitz vs. United States is just one of the odder sideshows in an emerging circus known as "space law." Space is new legal terrain, just as the air was in the early days of aviation and as the seas were in the dawn of ocean voyaging.

For space buffs, the stickiest legal issue is property rights in space, the question of whether a private person can lay claim to property where there is no constituted government. And it involves not only land, but also the airless void of space.

Entrepreneurship is the driving force.

Space enthusiasts look forward to an age of space commercialization on a grand scale, ranging from orbital hotels with zero-gravity swimming pools that float in the middle of a room to lunar factories that mine nuclear fuel for terrestrial fusion reactors. They fear such dreams might be stillborn if the legal niceties -- especially property rights -- aren't worked out in advance.

The legal status of property claims in space remains uncertain partly because of the ambivalent wording of the U.N. Outer Space Treaty of 1967, which called space "the province of all mankind." A subsequent U.N. document, the so-called Moon Treaty of 1979, was less ambiguous, as it implied that space resources should be commonly owned by all nations. The United States signed the first treaty but not the second one. Most space fans vehemently opposed the Moon Treaty, believing that its assertion that the moon could not become "property of any state, international intergovernmental or nongovernmental organization" was socialistic and would force space entrepreneurs to share their profits with all nations.

In a potentially groundbreaking article on space property rights, space law expert Rosanna Sattler recently argued that an overhaul of current treaties and laws is needed to "stimulate commercial enterprise on the moon, asteroids and Mars."

A major corporation "is not going to invest millions and millions of dollars for a communications system on the moon if there's no law up there to protect their assets," said Sattler, whose article, titled "Transporting a Legal System for Property Rights: From the Earth to the Stars," appeared in the summer issue of the University of Chicago Law School's Chicago Journal of International Law.

Another lawyer trying to rewrite space law, UC Davis-educated Wayne White of Boulder, Colo., advocates revising space law via a legal theory that he calls "property rights without territorial sovereignty."

White, who served on the U.S. State Department's legal subcommittee at a United Nations conference on space exploration in 2003, proposes that the United States pass a domestic law that recognizes the right of individuals to own and operate space industries, as long as they obey a "use it or lose it" provision: If they abandon the industry, they give up rights to it. In this way, he says, the United States could awaken other countries to the necessity for revised space laws and encourage them to negotiate a new international treaty that, he hopes, would clarify the legal status of property rights in space.

"Space development and settlement will not happen if it's internationally taxed and controlled," White said. "I think space settlement is a social 'release valve' that we desperately need. ... It's only going to get more crowded here on Earth."

Whether legally protected or not, space commerce is becoming a reality. Last week, wealthy entrepreneur-scientist Gregory Olsen returned to Earth after a trip aboard a Russian rocket to the international space station. The journey cost him $20 million, making him the third private citizen who paid for a space voyage. In 2004, Burt Rutan, designer of the private SpaceShipOne rocket launched from the Southern California desert, won a $10 million award from a private foundation for the achievement. The trip could presage tourist flights to orbit.

Meanwhile, President Bush is pushing for renewed human missions to the moon. There, space entrepreneurs speculate, future astronauts could drink water that private firms have extracted from the Hetch Hetchys of the solar system: fallen icy comets entombed in the eternally dark deep-freeze of the lunar south pole.

Also, the Chinese and Russians are talking about establishing lunar mining operations that would ship "helium 3" fuel to future nuclear fusion reactors on Earth. On Wednesday, China launched its second manned space capsule, the Shenzhou 6, carrying two "taikonauts," from a rocket site in remote northwest China.

This summer, Nikolai Sevastyanov, president of the Russian aerospace corporation Energiya, announced plans to mine helium 3 on the moon. "We should go about developing the moon step by step, from circumnavigation to landing to the construction of an energy base," said Sevastyanov, as quoted by the RIA Novosti news service. "After that, we'll go on to create a powerful electricity plant," he said.

There are conferences aplenty: For example, on Nov. 21-24, the United Nations is holding a "Workshop on Space Law" in Abuja, Nigeria.

Also, on Oct. 26 in Washington, D.C., the National Academy of Sciences is holding a free public symposium titled "Property Rights and the Moon," which poses questions including "the degree to which land on the moon may be privately owned." The scheduled speakers include Jim Dunstan, a prominent space lawyer with the law firm Garvey Schubert Barer in Arlington, Va.

"If we are able to go out into space and harness the incredible resources that are out there -- unlimited energy, precious metals -- then you open up the entire Earth-space system," Dunstan told The Chronicle. "You don't have limits to growth, and you can sustain unlimited Earth population."

Unlike some space lawyers, Dunstan takes a more relaxed view of the present legal situation in space. He doesn't think that existing laws or treaties need to be seriously revamped, at least not right away, in order for space entrepreneurs to plan for commercial exploitation of the heavens.

Still, space lawyers agree on one thing: They're mighty miffed by online sites that sell low-budget "deeds" to terrain in space -- say, a few acres at a specified latitude and longitude on the moon. This summer, a space lawyers' professional organization, the International Institute of Space Law, issued a statement cautioning that "the deeds they sell have no legal value or significance, and convey no recognized rights whatsoever."

Space law promises to be a burgeoning enterprise for future lawyers. By contrast, "when I went to law school (in the 1970s) ... there was only one paragraph in one book that mentioned space law," said law Professor Joanne Irene Gabrynowicz of the University of Mississippi, who is editor in chief of the Journal of Space Law.

However, for nonlawyer and asteroid-claimer Nemitz, the Ninth Circuit decision was the last straw: It so disheartened him that he decided against pursuing further legal action. Instead, he's poured his efforts into developing his private business -- selling beef jerky online.

"Maybe I'll get the beef jerky business to make me millions of dollars, and then I'll be able to get back into the space business again."