Leonard David has written a column about new Federal regulations governing meteorite collection on public land. Reading the column, we spotted one quote that raised a red flag:

“We tried to account for every kind of occurrence out there,” said Lucia Kuizon, national paleontologist at the [Bureau of Land Management] in Washington, DC. “We felt the policy helps the public understand the issues, as well as for our own resource specialists out in the field when they get inquiries.”

Wait a minute? Meteorites are not fossils. Why is a paleontologist issuing statements about them? What’s going on here?

A bit of history is in order. In the early 1990’s, the Federal government began to crack down on commercial and amateur fossil hunting on public land. The crackdown came at the behest of the Society of Vertebrate Paleontology, a small but politically powerful association of academic paleontologists who were upset about commercial and amateur collectors taking fossils of scientific value. The Society’s lobbying led to changes in the law and regulations that make it illegal for anyone other than professional scientific paleontologists, or their associates, to collect vertebrate fossils on Federal or Indian land.

The new fossil laws and regulations constitute an unprecedented grab of mineral rights by the US government. Historically, the Federal government has always recognized the right of US citizens to prospect for commercially valuable minerals on Federal land. For the first time in American history, the government declared a specific mineral resource completely off-limits to commercial prospecting everywhere on Federal land.

Ironically, the government’s actions will actually harm the science they were supposed to protect. Most fossils are buried deep in the Earth and only come to light when they are exposed by digging or erosion. If an exposed fossil is not discovered and collected within a limited period of time, it will be destroyed by continued erosion. The number of professional vertebrate paleontologists in the United States is very small. If fossils are not discovered by amateur or commercial fossil hunters, most will be destroyed by erosion before they are discovered, along with any potential scientific value. Other losers include American Indians, who no longer have the right to sell valuable fossils found on Indian land.

Now, it appears, the government is trying to bring meteorites under the same sort of restrictive regulation. The fact that Lucia Kuizon is one of the officials responsible for implementing the Great Fossil Grab is surely not coincidence.

On the surface, the new meteorite regulations do not appear quite as restrictive as those for fossils. They do allow some commercial collection, with a government permit and government fees. Ominously, however, the Bureau of Land Management redefines meteorites as antiquities, like arrowheads or pottery, rather than minerals. The same legal trick was used previously with fossils. Scientifically, it is clearly wrong, like defining the pi to be 3.0. Legally and politically, however, it serves a useful purpose, since it allows the government to declare that fossils and means that meteorites are not subject to US mining law or mining claims, removing hundreds of years of legal precedent that protect the rights of prospectors.

If these regulations stand, they may set a precedent that has serious implications for companies like Planetary Resources, which plans to mine asteroids in space. If asteroidal materials that have fallen to Earth are not minerals, it stands to reason that asteroidal materials in space are not minerals, either.

This touches on the issue of space property rights, which has been the subject of some debate recently. The Outer Space Treaty says that the Moon and other celestial bodies are “not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” It is silent, however, on the subject of appropriation by private parties.

This silence has led to a rift in opinion between lawyers holding statist views and those with a classical liberal leaning. Statists believe that real property rights (land rights) originate with the government and flow down to individuals. Thus, they argue, there can be no claims of private property without prior claims of national appropriation.  This legal theory dates back to medieval Europe, where the nation was the property of the King who bestowed land (fiefdoms) on his followers.

Classical liberals, on the other hand, believe that property rights originate with individuals who occupy previously unowned property and mix it with their own labor to create something of value. According to this natural-rights theory, first set down by the great 17th Century philosopher John Locke in his Second Treatise on Government, government’s role is not to create property rights but merely to recognize and protect them. The views of John Locke greatly influenced the Founding Fathers and the American view of property rights since the beginning of the Republic.

Under the classical liberal (and traditional American) theory, private property rights could exist on the Moon and celestial bodies, even in the absence of national sovereignty, because private property does not originate with the national government. That theory would open the way for extraterrestrial development through property-right claims such as the plan proposed by Rand Simberg.

Under the statist (and feudal European) theory, however, property-rights claims cannot exist without prior claims of national sovereignty. Nor are property-right claims necessary, according to proponents of this theory. Property rights are a distraction, according to a recent article co-authored by Berin Szoka, an attorney, board member, and former chairman of the Space Frontier Foundation. “Rather than land grants,” Szoka and co-author James Dunstan wrote, “what these ventures really require is exclusive mining rights for limited durations to reward them for investing in prospecting.”

The Space Frontier Foundation’s position on space policy rights has always been inconsistent, with leaders claiming to support property rights in theory while refusing to support property-rights initiatives in practice. Alan Wasser, an Advocate of the Space Frontier Foundation and chairman of the Space Settlement Institute, has been trying to get the SFF to take a stand in support of property rights for at least a decade, to no avail. (Update: SFF executive director Jon Card has informed us the Space Frontier Foundation now supports space property rights, although we have not found any evidence of public activities in that regard.)

These new BLM regulations show why Szoka is wrong and Simberg and Wasser are right. Mere mining claims, as proposed by Szoka, are not sufficient to protect the rights of private citizens, nor will they create sufficient legal certainty to allow companies like Planetary Resources to operate in space. The US government has already declared that asteroidal materials (at least on the ground) are not minerals and not subject to mining law. If a government bureaucrat can wipe away hundreds of years of mining law and outlaw mining claims with the stroke of a pen, there is no certain at all. Private enterprise needs a firmer basis of protection than that.

Written by Astro1 on October 12th, 2012 , Space Policy and Management, Space Settlement

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    Samuel commented

    Another concern is that, if the government redefines asteroidal materials as “antiquities” instead of minerals, it may then decide that scientific research and preservation take precedence over commercial development, as it did for fossils.

    October 12, 2012 at 7:08 pm
    fred rippetoe commented

    What happened to a government of the people, by the people, for the people? This seems to be another of the principle of antiquities obvious dismissal of the value of the Constitution of the United States of America, not to mention the Bill of Rights!

    [edited to remove excessive caps]

    October 12, 2012 at 8:01 pm
    Ed Wilson commented

    I note that the US is frequently not ideal for space developers to deal with. This really means that the astroidal materials will have to be delivered elsewhere, austrilia or canada perhaps? Russia / China? Lybia?? Does it matter?

    There are reasons for developing space and minimizing the shipment of real goods to earth – all that you need to do in space once you live there is pay off the morgage so you can keep bringing up more staff.


    October 13, 2012 at 3:00 pm
      admin commented

      The need is for a country where the courts will recognize property rights and claims from the groups who might try to take them away. Those groups can be defined, in broad terms, as criminals and government.

      As a pragmatic matter, there are few countries that meet that definition. (Can you imagine a Russian court standing up to Putin and his mob?) It also needs to be a country that has enough clout to defend claims on the international stage. (Can you see Australia standing up against Russia or China?)

      October 13, 2012 at 3:37 pm
    kish commented

    so how dose this effect non us citizens or corporation that want to venture into asteroid mining?

    January 12, 2013 at 7:59 am
    Berin Szoka commented

    Ed, even if you, Wasser and Rand were correct, as a policy matter, that private space development requires land grants, these are clearly prohibited by the Outer Space Treaty as a legal matter.

    I’m not going to rehash this matter further, especially since not one of you is a lawyer (let alone a space lawyer), but I will point your readers (if any) to our analysis of (a) what’s allowed under International law and (b) why that’s likely all that’s needed to drive space commerce:

    Good luck getting the U.S. to either reinterpret the Outer Space Treaty in a way that will cause the rest of the world to go bezerk or withdraw from the treaty. Meanwhile, the rest of us are actually working on clearing the property rights actually needed for space development in ways that are consistent with international law.

    April 11, 2014 at 2:07 pm
      Astro1 commented

      No, private property is not “clearly prohibited by the Outer Space Treaty.” The Outer Space Treaty is silent on the subject of private property. The Outer Space Treary prohibits *national* appropriation, but private individuals are not nations. This was clearly stated by legal experts as far back as 1969.

      It is the Space Frontier Foundation and TechFreedom who are trying to “reinterpret” the Outer Space Treaty. Just as you are redefining “property rights” to mean something other than private ownership.

      Like it or not, you cannot repeal the laws of economics and human nature. There has never been a successful society without private ownership of property. Even Stalin could not make that work. There will be private property on the Moon, whether the United States recognizes it or not. If you argue against it in court, you will soon discover the limits of US jurisdiction. (As Robert Heinlein said, it is not preordained that the people who settle space will speak English.)

      April 11, 2014 at 3:52 pm