I Wish That Were The Only Problem…

Tankmodeler, a friend and regular here at Selenian Boondocks, mentioned something in a comment to Ken’s last post that I think deserves some mention:

[T]he one absolutely key stumbling block is ownership of Lunar mineral rights. No-one is going anywhere unless they know, rock solid, that they will own what they find. If space advocates want to get us off this rock, the single best thing that they can do is lobby their local governments to recognize Lunar property ownership. Once that happens a lot of other things start to happen in very well-known ways.

Now, I’m not saying this to pick on Tankmodeler, but I think this is a common opinion. I also think it’s wrong.

First off, while the state of extraterrestrial property rights isn’t as solid as one would hope, they’re probably good enough. Basically, while property rights aren’t formally and intentionally recognized by international law, the law does informally create a regime that is close enough for practical purposes. You can’t own a deed to lunar property. But anyone who wants can land hardware there, and do whatever research or resource extraction they want. Anyone who has hardware in space can seek legal redress if someone tries to interfere with their operations. Anyone who harvests materials on the moon still owns them when they land.

Heck, using the exclusion principle, you might even be able to structure a deal that smells rather strongly of real estate. While you couldn’t say sell the right to the lunar land underneath a LOX extraction facility, you could sell the facility, and the right to exclude anyone from interfering with it…it ain’t perfect, but life is about taking what’s possible and running with it.

More importantly, while there is definite room for improvement when it comes to extraterrestrial property rights, there are no real obstacles that couldn’t be overcome if there were a sufficiently compelling business case to be made. As Jim Dunstan pointed out a while ago, there used to be all sorts of legal restrictions about oil extraction in the Alaskan wilderness. But, once the technological and economical case for extraction was solidified, the legal restrictions were overcome in short order.

I’m pretty much with Jim. The reason why we don’t see lunar mining ventures right now has little to do with legal ambiguities about property rights. It has a lot more to do with the immaturity, unaffordability, and to put it bluntly, non-existence of cislunar transportation systems. And our relatively limited knowledge of lunar resource concentrations, extraction techniques, and the lack of experience with technologies capable of long-term lunar surface operations. I may be biased, but I think it’s the transportation architecture and infrastructure immaturity that is the real obstacle. Once you have affordable, reliable, and consistent access to the lunar surface, doing the exploration necessary to get a good handle on the location of useful resource concentrations becomes feasible. Doing the development work of making equipment, spacesuits, and structures that can handle the abusive lunar surface environment also becomes more feasible. Etc.

That isn’t to say that we should just ignore space law, or that the situation is perfect. I’m sure there are several space law experts who can offer good suggestions for practical next steps, and things we can do to improve space property rights (Jim? Berin? Jesse?) What I am saying is that I think it’s really easy to lull ourselves into thinking that the main thing standing between us and space profits is those meddling socialists in DC and Turtle Bay, as opposed to more mundane things like creating solid business models and building reliable and affordable technology.

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Jonathan Goff

Jonathan Goff

President/CEO at Altius Space Machines
Jonathan Goff is a space technologist, inventor, and serial space entrepreneur who created the Selenian Boondocks blog. Jon was a co-founder of Masten Space Systems, and is the founder and CEO of Altius Space Machines, a space robotics startup in Broomfield, CO. His family includes his wife, Tiffany, and five boys: Jarom (deceased), Jonathan, James, Peter, and Andrew. Jon has a BS in Manufacturing Engineering (1999) and an MS in Mechanical Engineering (2007) from Brigham Young University, and served an LDS proselytizing mission in Olongapo, Philippines from 2000-2002.
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6 Responses to I Wish That Were The Only Problem…

  1. Josh says:

    My take on it is that the legality will be sorted out once something meaningful is being done in space – regardless of location (Moon, mars, GEO spectrum, etc).

    Getting a mining/extraction system working and on the moon is much more challenging than the little bit of paperwork needed to claim the fruits of that labor.

  2. Ferris Valyn says:

    I tend to agree with you on one level. However, I do think it helps to drive investment further away from the industry, although I question how much investment difference it would make if it was all sorted out

  3. Habitat Hermit says:

    Hehe you worded it so politely and nicely I almost don’t want to point out it was Tankmodeler saying that and not me ^_^

    Your reasoning is correct in my opinon and I think I’ve argued something similar earlier here or possibly elsewhere.

    Thus until the first self-sustainable non-terrestrial population appears (but to various degrees even after that) I don’t think the question is one of property rights or not but rather about many possible various forms and degrees of property including what I would call “sovereign property”.

    I see it as tradeoffs and compromises (or not) between an owner (private individual, company, or otherwise) and a government (or several) in relation to two main issues of ownership:
    – controlling (defending, manouvering if applicable, etc.) the property “up there”.
    – being free from government interference to do so from “down here” (and at some point in the future from interference “up there” as well).

    There are lots of working combinations of answers and solutions to those two main issues and all other issues which relate to/stem from them.

    As an example among a host of possibilities we might see owners “flagging out”* asteroids they wish to claim as sovereign property to legal entities in nations allowing such property to exist.

    An internationally agreed upon set of space property rules would in all likelihood severly limit the scope and diversity of solutions. I’m afraid it wouldn’t be beneficial.

    * this might be a purely norwegian expression, it means adopting a flag of convenience as is common within maritime shipping.

  4. Jon Goff says:

    Habitat Hermit,
    Sorry for misattributing that. Brain fart. I fixed the post.

    Josh, Ferris,
    Exactly.

    ~Jon

  5. tankmodeler says:

    Well, I certainly hope you’re right, Jon, but I tend towards agreeing that it’s another element pushing investment away from lunar resource exploitation.

    Certainly it has elements of chicken & egg. If there were reasonably cheap avenues to the Moon right now, maybe it wouldn’t matter. Without the existing transportation methods, it may be limiting money funding the development of those methods.

    Like most of these things, I suspect we’ll never know the real reasons. Historians can figure it out for Masters thesis in 50 years.

    I hope.

  6. Pingback: The Moon Blog » Blog Archive » Lunar property rigths

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