But What About Parking Fees for Asteroids?

Space law is not exactly awash in court opinions. There are statutes. There are regulations. There are not a lot of cases. If, therefore, someone is interested in looking at property rights in space and remembers the case about the fellow who tried to charge NASA parking fees for landing on his asteroid, it behooves one to check out the actual court opinion.  There is one dismissing the fellow’s claim, and this is what I found.

The court’s dismissal of the complaint for failure to state a claim: Back in 2003, Mr. Gregory Nemitz filed a complaint against NASA for parking fees for NASA’s NEAR spacecraft landing on “his” asteroid. He alleged violations of the Fifth, Ninth, and Tenth Amendments of the Constitution, an implied breach of contract, and violation of Congress’s declaration of policy and purpose for NASA. The U.S. Government asked the court to dismiss the complaint. In his opposition to the United States’ Motion to Dismiss, Nemitz stated that “he does not seek a declaration from this Court that he has an ownership interest in” the asteroid at issue. Noting the inadequacy for “creating a property interest,” meaning establishing that he owned the asteroid, of Mr. Nemitz’s various filing under California’s Uniform Commercial Code and registration with the Archimedes Institute website, not to mention his disavowal of a request for a finding that he had a property interest, the Court held that Mr. Nemitz failed to assert a legally protectable property interest in the asteroid. Because a takings claim under the Fifth Amendment requires a constitutionally protected property interest, and Mr. Nemitz did not assert one, he had no claim. It’s hard to claim violation of a property interest if you are unwilling to assert that you have one. The court dismissed the remainder of his arguments out of hand.

The court’s dismissal struck no death knell for private claims, even if Congress hadn’t passed a law recognizing private property rights in 2015. If someone gives up an important element of his argument as Mr. Nemitz did, it’s hard to say that the issues are joined sufficiently to establish any kind of precedent. As one legal scholar, Lucian Grove, noted,

At first blush, it may seem as though Nemitz closes the door to private citizens or companies hoping to acquire property in space. However, the district court did not hold that property rights in space do not exist or that private entities could not obtain celestial property rights; rather, the court held that none of the sources cited by Mr. Nemitz created property rights in Eros. Furthermore, in response to the defendants’ motion to dismiss for failure to state a claim, Nemitz argued that he did “not seek a declaration from this Court that he ha[d] an ownership interest in [Eros].” This statement, and its inclusion in the opinion, could be seen as rendering the court’s reasoning unnecessary dicta since the statement negates Nemitz’s original complaint seeking declaratory judgment.

(footnotes omitted) “Dicta,” for the uninitiated, happens when a court finds sufficient reason to make a decision, but keeps on talking anyways. Dicta is not binding law. Nemitz’s failure to claim a property interest was sufficient reason alone to dismiss his claim, without need for any additional analysis. Additionally, the commenter is likely correct in his observation that the court did not say there were no property rights in outer space, only that Mr. Nemitz hadn’t proved he had a property interest in a particular asteroid.

2003 State Department view of private property. As a side note, a State Department letter regarding property rights has been made moot by the passage of a new law. The letter in question constitutes the first exhibit attached to Mr. Nemitz’s complaint, and comes from the State Department’s Ralph Braibanti, Director, Space and Advanced Technology, Bureau of Oceans and International Environmental and Scientific Affairs, dated August 15, 2003. In that letter Mr. Braibanti states that it is the view of the Department that “private ownership of an asteroid is precluded by Article II of the” Outer Space Treaty. Accordingly, State considered Mr. Nemitz’s claim to be without legal basis. Mr. Braibanti’s is a rather sweeping statement, and courts do not always consider agencies committed by such statements. Indeed, Congress did not.  In light of its passage of the Space Resource and Utilization Act of 2015, I think we can say that letter has not turned out to be the official government position.