Aeronautical Law in the United States

In Robert Heinlein’s 1951 science fiction classic The Man Who Sold the Moon, the protagonist uses the legal principle Cuius est solum, eius est usque ad coelum et ad inferos (“Whoever owns the soil, it is theirs up to heaven and down to hell”) as part of a plot to finagle the United Nations into ceding ownership of the moon to his company.

World leaders must have taken notice. The U.N.’s 1967 Outer Space Treaty enshrines outer space as “a zone devoid of sovereign control,” says Michael Dodge, a space law expert at the University of Mississippi. “Article II prohibits states on Earth from attempting to scoop up land for their future use, thereby avoiding colonialization of space,” he says.

A second United Nations treaty executed twelve years later declared the natural resources of the moon and other celestial bodies to be reserved for the “common heritage of mankind.” (Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Dec. 5, 1979, 1363 U.N.T.S. 3.)

But the Moon Agreement hasn’t stopped would-be entrepreneurs from preparing for business far beyond our planet.

Bigelow Aerospace of North Las Vegas is seeking Federal Aviation Administration approval to launch inflatable modules to be stationed on the moon, and has recently petitioned the FAA to amend the 1967 space treaty so that anyone who makes it to the moon can have private property considerations. And last spring Planetary Resources Inc. of Redmond, Washington, announced plans to send robotic explorers to asteroids within the next two years, hoping to mine them for water and precious metals.

Dodge emphasizes that the legal environment for the moon and other natural bodies in space is different from that aboard the orbiting International Space Station. “Ultimately, the differences stem from the entwined notions of jurisdiction and sovereignty,” he says. “The real question is to what extent can states gather materials from the moon and other celestial bodies without appropriating the land to themselves, thereby de facto claiming parts of the moon under their sovereign control.”

The U.N. attempted to address that issue in its 1979 Moon Agreement, Dodge says. And although that treaty has never found favor among spacecraft-operating nations (the United States is not a signatory) because of mining provisions that call for equitable distribution of resources, its framework generally guides activities in space. As the prospect of actual lunar mining draws closer, he expects “a resurgence of attention to the Moon Agreement.”

Asteroid mining presents another issue, since according to Dodge there is no consensus yet on whether asteroids are ‘celestial bodies,’ like planets and moons. “If asteroids are not,” he says, “then the rules that apply to mining them could be different in subtle, yet financially significant ways.”

In July, Reps. Bill Posey (R-Florida) and Derek Kilmer (D-Washington) introduced H.R. 5063, the American Space Technology for Exploring Resource Opportunities in Deep Space Act.

ASTEROIDS, as it is known, would establish that resources obtained from asteroids are the property of the company that extracts them. The bill also provides “freedom from harmful interference” for any entities subject to U.S. law that are engaged in asteroid mining.

“The legislation is woefully nonspecific, perhaps to avoid conflicting with U.S. international obligations under the Outer Space Treaty,” Dodge says. “Hopefully, the House will attempt to iron out some of these quandaries.”

Difficult intellectual property issues confront companies wherever they mine in space. “If a corporation is acting independently, then the IP restrictions found in NASA agreements will not apply,” Dodge says. “But if the corporation is acting with NASA or at its behest, then the same tricky, title-taking problems will apply.”

Despite the “common heritage of mankind” language in the Moon Agreement, space lawyers may yet find room in the treaty for private development in deep space. “You can’t ask for property rights, because those are prohibited,” says Mark Sundahl, associate dean and professor at the Cleveland-Marshall College of Law. “So instead, you might ask for the right of noninterference.”

But Sundahl adds, “At some point, we’re going to have to address the ownership of natural resources. A company like Planetary Resources isn’t going to invest billions of dollars prospecting for precious metals on an asteroid without clear legal title to ownership.”

Private

(This section continues the entry started in Space Law)

Back in Los Angeles, attorney Griffith likes SpaceX’s chances in its competitive-bidding battle with the Air Force, citing the federal claims court’s injunction enjoining United Launch Alliance against purchasing more engines from Russia. (However, after the Treasury, Commerce, and State departments issued separate findings that the purchases will not violate the president’s sanctions order, the injunction was dissolved; see Space Exploration Techs. Corp. v. United States, 2014 WL 1860048 (Ct. Cl.).)

“SpaceX’s bread and butter is its ISS contract with NASA,” Griffith says. “They have a long backlog and a good revenue stream, so if they lose this battle [to transport military satellites instead of ULA] I don’t think they have as much at stake.”

Griffith believes SpaceX has a case. “There was so much subjectivity in the Air Force regulations … it allowed them to go with the ‘legacy provider,’ ” he argues. “Along with proven reliability of ULA’s technology, there is also a certain comfort level. But my sense is that the Air Force knew all along they were obligated to put these contracts out to bid.”

We may never know. In July, Judge Braden urged the Air Force and SpaceX into mediation (the parties have until the middle of October to decide). “I think a mediated solution will come, and a certain number of launches will be taken away [from ULA],” Griffith says.

NASA indicated its increasing comfort with ULA’s competitors in September, when the agency announced Commercial Crew Initiative contracts worth $4.2 billion to Boeing and $2.6 billion to SpaceX. CEO Elon Musk called the award to SpaceX “a vital step in a journey that will ultimately take us to the stars and make humanity a multiplanet species.”

Meanwhile, Musk faces the competitive pressures of any entrepreneur. Last month Blue Origin-a secretive launch company run by Amazon.com founder Jeff Bezos-announced plans to team up with ULA to develop a replacement for Russian engines in the Atlas 5 rockets used to launch U.S. military and spy satellites. This would pit the Blue Origin/ULA partnership against SpaceX, which is promoting its own Falcon 9 rockets.

National Aeronautics and Space

See:

• National Aeronautics and Space Act

The mission of the National Aeronautics and Space Administration is to pioneer the future in space exploration, scientific discovery, and aeronautics research.

The National Aeronautics and Space Administration (NASA) was established
by the National Aeronautics and Space Act of 1958, as amended (42 U.S.C. 2451 et seq.).

Activities

Aeronautics Research Directorate The Aeronautics Research Mission Directorate conducts research and technology activities to develop the knowledge, tools, and technologies to support the development of future air and space vehicles and to support the transformation of the Nation’s air transportation system. The Directorate’s programs focus on cutting-edge, fundamental research in traditional aeronautical disciplines, as well as emerging fields with promising applications to aeronautics, and are conducted in conjunction with industry, academia, and other U.S. Government departments and agencies, including the Federal Aviation Administration and the Department of Defense.

Space Operations Mission Directorate

The Space Operations Mission Directorate (SOMD) provides the
foundation for NASA’s space program: space travel for human and robotic
missions, in-space laboratories, and the means to return data to Earth. SOMD is
responsible for many critical enabling capabilities that make possible much of
the science, research, and exploration achievements of the rest of NASA.

This is done through three themes: the International Space Station, Space
Shuttle, and Space and Flight Support. The International Space Station is a
complex of laboratories maintained to support scientific research, technology
development, and the exploration of a permanent human presence in Earth’s
orbit.

The Space Shuttle, first launched in 1981, provides the only current capability in the United States for human access to space. The Shuttle’s focus over the next several years will be the assembly of the International Space Station, after which it will be phased out of service.

The Space and Flight Support theme encompasses space communications,
launch services, and rocket propulsion testing. Space communications consists
of five major elements: the Space Network or Tracking and Data Relay
Satellite System, the Deep Space Network, the Near Earth Network, the
NASA Integrated Services Network, and NASA Spectrum Management.

The launch services program focuses on acquisition of commercial launch
services for NASA’s space and Earth science missions. The rocket propulsion
testing program supports the flight readiness of various liquid propulsion
engines and acts as a test bed for rocket engines of the future.

Science Mission Directorate

The Science Mission Directorate carries out the scientific exploration of the Earth,
Moon, Mars, and beyond, charting the best route of discovery. The Directorate
manages and sponsors research, flight missions, advanced technology
development, and related activities.

It works to expand our understanding of the Earth and the Sun and the Sun’s
effect on the solar system environments; explore the solar system with robots to
study its origins and evolution, including the origins of life within it; and explore
the universe beyond, from the search for planets and life in other solar systems to
the origin, evolution, and destiny of the universe itself.

Exploration Systems Mission Directorate

The Exploration Systems Mission Directorate (ESMD) is responsible for
technology development that enables sustained and affordable human and
robotic space exploration. ESMD’s activities include developing robotic
missions to multiple destinations to scout human exploration targets, increasing
investments in human research to prepare for long journeys beyond Earth, and
developing U.S. commercial human spaceflight capabilities.

NASA Centers

Ames Research Center The Ames Research Center, located in California’s
Silicon Valley, provides solutions to NASA’s exploration questions through
interdisciplinary scientific discovery and innovative technology systems.

The Center provides leadership in astrobiology, information science,
small spacecraft, advanced thermal protection systems, human factors, and
the development of new tools for a safer and more efficient national airspace. It
also develops unique partnerships and collaborations, exemplified by NASA’s
Astrobiology Institute, the NASA Research Park, and the University Affiliated
Research Center.