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Forcing the issue

Greg Nemitz has been a ‘love him or hate him figure’ within the space community for quite some time. Many have wondered what he could possibly accomplish by claiming the Asteroid Eros and charging NASA parking fees to leave their probe on its surface. Some were outraged when he took NASA to court for the failure to pay… not outraged because they felt it was silly; outraged because they thought he might generate bad case law.

Now Greg is on to the next step up the legal ladder. I am beginning to see the outlines of what may be a fascinating and outrageous (in a good sense) plan to settle the issue of extraterrestrial property rights in the US Supreme Court.

I will let Greg speak for himself:


The first legal case in Space Property Law was advanced today, 20 July, 2004, into U.S. Federal Appeals Court. Gregory Nemitz of Carson City, Nevada filed an appeal brief in the United States Court of Appeals for the Ninth Circuit in San Francisco, California. The brief requests that the lower Court’s Order to Dismiss be overturned.

On November 3, 2003 Nemitz filed a Complaint for Declaratory Judgment in U.S. District Court in Reno, Nevada. The complaint charged the court to resolve the question, “Does the Outer Space Treaty of 1967 preclude private ownership of an asteroid and/or property on celestial bodies, or does it not?”

In March of 2000, Nemitz published a claim of ownership to Asteroid 433, Eros, commencing the “Eros Project for Space Property Law;” see: www.erosproject.com. On February 12, 2001, NASA permanently landed its NEAR Shoemaker spacecraft on Nemitz’s asteroid. Nemitz then sent NASA an invoice for parking and storage fees of $20 for the next century’s rents. NASA refused to pay the invoice, citing that the Outer Space Treaty of 1967 precludes private ownership of an asteroid.

Nemitz then sent a formal Notice to the United States Department of State that NASA had exceeded its authority and had denied Nemitz of his legal Rights. The U.S. State Department’s Official Determination in the matter stated that, “In the view of the Department, private ownership of an asteroid is precluded by Article II of the [Outer Space Treaty of 1967].” Nemitz then filed the Complaint for Declaratory Judgement in the District Court to determine the matter of Rights v. Treaty.

Nemitz states the importance of this issue, “There will be no commercial activities to harvest the vast and valuable resources in Space without official respect for private property rights.” Nemitz’s long-held viewpoint was recently confirmed by the President’s Commission on Moon, Mars and Beyond, when in June, 2004 it released its recommendations which included:

“Because of this treaty regime, the legal status of a hypothetical private company engaged in making products from space resources is uncertain. Potentially, this uncertainty could strangle a nascent spacebased industry in its cradle; no company will invest millions of dollars in developing a product to which their legal claim is uncertain. The issue of private property rights in space is a complex one involving national and international legal issues. However, it is imperative that these issues be recognized and addressed at an early stage in the implementation of the vision, otherwise there will be little significant private sector activity associated with the development of space resources, one of our key goals.”

In Nemitz’s Appeal Brief, he succinctly states:

“The United States, in its defense of the U.S. Department of State’s and NASA’s Official Determinations in this matter of Rights v. Treaty, espouses a position that endorses and is in complete accord with the first plank of the Communist Manifesto.

“1. Abolition of property in land and application of all rents of land to public purposes.” Manifesto of the Communist Party, 1848, Marx

It is unimaginable that when the Outer Space Treaty was being negotiated with the Soviet Union in the United Nations, during 1966-67 at the height of the Cold War, that the American delegation intended for our American society’s fundamental order of private property rights should be completely withheld from the People who will conduct their business and their lives in outer space. The Department of State’s and NASA’s interpretations are a completely abhorrent antithesis to the American way of life. At the time of those Official Determinations and even now, Russia and the CIS (former Soviet Union) have reformed their fundamental societal order to accommodate private property rights, yet the U.S. Dept. of Justice today defends or obfuscates these ludicrous and stifling Official Determinations of the U.S. Dept of State and NASA, as if the United States of America was dominated by a Communist regime.”

Nemitz’s complete Appeal Brief is available for public review at: www.erosproject.com/appeal/apindex.html.

The Eros Project for Space Property Law is primarily sponsored by Beefjerky.com, www.beefjerky.com. Additional support is provided by the Space Age Publishing Company, www.spaceagepub.com. The Eros Project’s legal fund accepts the public’s donations in any amount on its website.

I will be certain to report on future developments as this case wends its slow way up though the American judicial system.

12 comments to Forcing the issue

  • Julian Morrison

    Best case, he succeeds.

    Worst case, he identifies the blockage, and effort can be directed specifically towards removing it.

  • I’m all for private property in space, and the Outer Space Treaty seems ridiculous to me, but in what sense is it meaningful to simply *claim* ownership of an object without visiting it or working on it? Doesn’t private property come from labour?

  • Dale Amon

    Ah, I see you have missed the point. Greg has built a case; he has found himself a legal standing to stand upon; he is now pushing the issue up through the courts. Once you are at the appeals level the findings start being about law, not about your case; if you make the appeal all the way to the Supreme Court you are again not deciding the original case but the constitutional law issues surrounding it.

    Greg might (and probably will) lose his case in the end. But in the process he may force the courts to make a determination, to define:

    * are US courts able to make this determination?
    * are certain clauses of the 1967 Treaty constitutional?
    * what exactly determines property rights on extraterrestrial facilities and land?

    Any and all of these are very interesting things for legal determination. Legal pundits both of the real and IANAL types have been discussing these topics for decades. Perhaps we will finally see an answer. If it is not what we like then at least it is out in the open where we can fight it, rather than something under a rock that no one wants to talk about openly.

  • Rob Fisher’s got a point, though. Won’t higher courts decide the case on the easiest grounds, that is, that Nemitz doesn’t really “own” the asteroid because he’s never been there? They wouldn’t even reach the treaty.

  • Thanks for the clarification, Dale, I suspected I was missing something; now I see what he’s trying to do.

  • Dale, put me down as extremely skeptical of this whole project. The movement to push property rights in space and to force the establishment to agree to clarifications of the OST has been making slow but steady progress for the last couple of years.

    Running this through the US legal system at this time risks a couple of very bad outcomes.

    1. This could go to a left wing appelate court which would decide that against private property and enshrine the whole “Common Heritage of Mankind” garbage in US law. After which the Supremes would decide that the have better things to do than to deal with a few floating rocks. Thus the whole decision would stand.

    2. The issue would become associated with crazy right wing kooks. The left has managed to implant a belief in some people’s minds that anti tax libertarians are the same as the Posse Comitatus- violent, racist nutballs. (For those of you outside the US imagine the BNP with assault rifles, explosives and thousands of acres of land on which to train.)

    There should be plenty of room for amatuers to get involved and annoy the powers that be, but this is one effort that I have serious doubts about.

    Good Luck

  • Uncle Bill

    Are the legal issues with regard to Antartica some what similar?

  • Dale Amon

    No, not really. There are already claims of soverignity to most of Antarctica. Sometimes multiple ones for the same area. So everyone has agreed to leave Antarctica as a scientific reserve for now… I doubt this circumstance will continue forever although it may well hold for many more decades.

  • Not to confuse forests and trees, but some quick notes after having perused Nemitz’ appellate brief:

    –It would help if he spelled “judgment” correctly.
    –It would have helped if he hadn’t demanded a jury trial in a claim for declaratory relief (equitable actions are never decided by juries).
    –I find it hilarious that he claims ownership of the actual court documents.

    –This will not have legs, and I could see a scenario where he gets slapped with Rule 11 sanctions (frivilous litigation).

    I pity the poor clerks who will have to wade through his incoherent brief. It’s definitely not a prime example of property-rights scholarship.

  • Dale Amon

    I must admit I do not much fear who the ‘Moore’ crowd lump me in with; nor do I have much faith at all in the powers that be to make ‘slow steady progress’ about property rights in Space. If left to the ‘professionals’ (sic) I fear deals will be done and we’ll ultimately end up with a Global Space Consortium which controls and taxes space for the ‘good’ of all ‘mankind’ (meaning the good of whichever UN officials are positioned to shovel the most cash into their pockets.)

    I have very, very little faith in government. I have much more faith in what government will do when well bludgeoned in broad day light.

  • Dale Amon

    I am sure there are many flaws and I am not attempting to judge his execution. I think the approach is an interesting one.

    Perhaps you could send your suggestions for improvements and corrections to him.

  • Dale I admire your courage. Like you I lack faith in the professionals and also in Government, and the UN officials will steal anything that is not nailed down.(Then they will complain about the world’s unjust distribution of claw hammers).

    The slow progress is being made by a messy coalition of Libertarians (Cato Institute Types) and a few maverick conservatives. The main weakness of the OST is that there has never been any agreement on what the terms of the treaty actually mean.

    With any luck someday a private citizen will make a homestead claim on the moon and then all hell will break loose. If things stay as they are then he(or she) may have a small chance.

    If, in the near future, the treaty’s ambiguities are cleared up in favor of the UN our mutual nightmare will come true. If the CATO types can get the (Few) sympathizers we have inside the system to promote the right clarifications then the homestead claim has a good chance of being upheld.