Owning the Moon – Another Law School For You

George Bailey (Jimmy Stewart), in 1946, in It’s a Wonderful Life, tells his sweetheart “I’ll give you the moon.”
Frank Sinatra sang Fly Me To The Moon (written by Bart Howard in 1954 and first recorded that year by Kaye Ballard) in 1964. It was closely associated with the Apollo space missions.

Neither Stewart nor Sinatra envisioned a world where countries and countless individuals would fight over ownership of rocks, dust, fragments and other things gathered from earth’s outer space pumpkin.
Yet we have now yet another in what are hundreds of situations where moon “things” are at the center of legal controversy. And no wonder — the controlling law over “ownership” is not clear, artifacts have been legally “given” away, and NASA readily admits losing more than 500 samples of space material brought back from the Apollo missions. Further, NASA has lent out more than 26,000 samples of “things.”

With an unclear law and an abundance of stuff “out there,” claimed or real ownership of space “things” is not as hot a topic as global warming, but it hits very close to home for many people who profess to own rocks, dust and other space material.
Most recently, Nancy Lee Carlson, a Chicago area attorney, bought a bag of some moon dust that originally came from Neil Armstrong’s gatherings on the 1969 Apollo 11 mission to the moon. NASA apparently forgot about the bag over time and accidentally auctioned it off with other space related objects for nine hundred dollars.
Believing there was moon dust inside the bag, she sent it back to NASA for testing. They confirmed it was real moon dust and refused to give it back to her, saying they made a mistake. Carlson sued and won, and she is now auctioning off the moon dust. Estimates are that she will fetch about $4 million.

The background of the law that governs outer space “things” starts in 1967. The Outer Space Treaty, formally the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, is a treaty that as of last month enjoys the participation of 106 countries.
The treaty is a greatly misunderstood legal document. Particularly, there is a great deal of debate about the application of the treaty to the lunar samples obtained by the United States during the Apollo program. The legal underpinning of the treaty is found in its very first sentence:

The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.
Backing up in time a bit more, this concept comes from Roman times, and the treaty effectively restates in modern applicability the Roman res communis principle. That was a property concept covering things that were not subject to dominion and control, and therefore deemed not to be property (which thus cannot be owned), like air and flowing water. Extrapolating that principle, the Outer Space Treaty posits that no nation or individual can appropriate or otherwise possess outer space to the exclusion of others.

The treaty does not specifically refer to resources or real property rights. It does say in the first article that outer space, including the moon and other bodies, shall be free for exploration and use by all states. Freedom-of-use has been interpreted by many to include the right to appropriate resources. It is much the same as the commonly accepted right to remove fish from the ocean with the understanding that no one can own the ocean.
Fast forward, and the world has basically accepted that the custody of samples by the United States from the Apollo missions is consistent with the exploration and use of the intent of the treaty – that is, the U.S. holds these samples for the world.
NASA has sued in court to recover moon things. No prosecution has ever succeeded, except for those literally caught in the act of theft (sting operations).

The major historical giveaway of moon things followed President Richard Nixon’s order to distribute fragments of a moon rock collected during the Apollo 17 mission to 135 foreign heads of state, the 50 U.S. states, and US territories. There was no original objection from any country to the U.S. taking possession of lunar rocks or to the following gifting.
The moon rock gift to Honduras was stolen and the rock subsequently was put up for sale on the black market. The U.S. seized the rock in a sting operation. In a ridiculous about-face, the U.S. then asserted ownership of the rock it had previously given to Honduras. A Federal court ordered the rock returned to Honduras.
In a federal criminal case in 2002 charging two Houston student interns with theft of lunar samples from NASA’s Johnson Space Center, the court set the value of moon rocks at $50,800 per gram, based on how much it cost the government to retrieve the samples between 1969 and 1972. All together, twelve astronauts who walked on the moon returned 2,415 samples weighing a total of 842 pounds (382 kilograms). NASA says it has never gifted or otherwise provided any individual with a piece of the moon, which includes the astronauts not being allowed to keep a rock for themselves. Thus, with no statute of limitations, anyone found to be in possession of moon rocks or samples can be prosecuted for theft.

If and when a government, a company, or a private individual like Elon Musk (planned SpaceX mission to the moon in 2018) succeeds in future outer space missions, can they stake out property on the moon or other celestial bodies as “owned” by them in the same way early pioneers staked out property in the American West?
Fly me to the moon, let me play among the stars…
Okay, but beware if you have that rock lying around… Danger Will Robinson!
Perhaps it is better to follow Cat Steven’s thoughts… I’m being followed by a moon shadow…