3672-A Bancroft St. San Diego, CA 92104
22 March, 2001
National Aeronautics and
Mr. Edward A. Frankle
Mail Code: GS
Washington, DC 20546-0001
Dear Mr. Frankle:
Thank you for your letter of March 9, 2001 in response to Orbital Development’s invoice dated February 16, 2001, for US$20.00 to NASA for parking/storage fees for the NEAR Shoemaker spacecraft, which is parked on Orbital Development property, 433 Eros, as of February 12, this year.
As you have requested, in further clarification of my ownership status of 433 Eros, I will attempt to provide acceptably facial supporting information about my claim to ownership of the property. Multiple facets of the law allow support of the claim. Because my response addresses several important points of discussion, it is probably most appropriate that the Department of State be made aware of our difference of opinions on the Space Property Rights issue, and my right to invoice NASA for the submitted request of payment for fees, now past-due. I appreciate your kind offer to forward the matter to the Department of State for their guidance. I would like to be informed and kept apprised of any such actions, if taken by your office.
I have been doing business as (DBA) Orbital Development since 1992. OrbDev is a company name wholly owned by me, Gregory W. Nemitz. I, as a natural person, have claimed ownership of the entire asteroid 433 Eros and a surrounding space to an altitude of 50 kilometers. As the original property owner, I have delegated all activity about 433 Eros to pass through my company Orbital Development. My claim to ownership of 433 Eros predates my original registration of the claim of March 03, 2000, at the Archimedes Institute.
The Archimedes Institute (http://www.permanent.com/archimedes) was founded by Prof. Lawrence Roberts, Assistant Professor of Legal & Ethical Studies at Fordham University. I will include the Institute’s presently connoted policy on this matter, which he has so kindly provided.
The Archimedes Institute has set up a private registry. We do not have the authority to confer property rights nor adjudicate such claims. The registry has been designed to serve several functions, including:
1. enabling the registrant to claim to the world that the registrant is intent on developing or retaining control over the claimed parcel thereby discouraging competitors from investing in the development of the same site;
2. providing a simple mechanism for establishing unbiased and unquestionable evidence of the intent and activity of the claimant. This benefit could be invaluable in any future court challenge to the resources in question;
3. gradually creating a broad standard for private property claims registration, which is supported by a wide variety of claimants. This standard could provide both an intellectual focus and the political impetus for a formal international registry financed by the nations of the world [A model of such a standard is posted on the site. It has been modified from time to time as considered comments have been contributed.]; and
4. promoting the cause of space development by facilitating broadbased claims to large numbers of interested individuals. This will have the effect of encouraging broader participation on the part of the public at large as well as providing a larger core constituency with a vested interest in the outcome of space commercialization.
The source of authority is derived from the claimant.
< End Quote>
In my view, and it is the opinion of the Archimedes Institute and of others, that valid claims can and do arise from the authority of the individual claimant. A claim on an un-owned thing immediately converts the thing into property of one species or another. The claimant is the original owner of that property.
The Institute’s standards for the registration of private property claims are only an evolving model. The Institute has no legal authority to establish ironclad standards that restrict a claim’s scope. However, it is a well-known registry in which to publicize individual Space property claims that have been established by natural persons.
Your letter cites the Article II of the Outer Space Treaty of 1967, to which the United States is a party, which states: "Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means." 610 U.N.T.S. 205, 18 U.S.T. 2410.
A Natural Person appropriated the claim for 433 Eros, myself. The claim was specifically not instituted on behalf of any nation. Your citation above does not address this situation of personal claims by appropriation, it solely addresses national appropriations.
My claim’s full intention is presented here for your consideration:
Complete Control in "fee simple" or "outright ownership, free & clear" specifically not instituted on behalf of any Nation and regard it as real personal property owned by Gregory W. Nemitz, a Natural Person.
Your letter continues with: "If Orbital Development or its principals are U.S. nationals, this treaty provision would seem to preclude any claim to own Eros."
Since the treaty does not pertain to individual claims, I believe that it is an invalid postulate that a national appropriation, as described in the treaty, is inherent to an individual claim, especially a claim that specifically excludes such a connection.
Concerning Article VI of the OST of 1967 and its invalidity to this matter. Article VI is solely intended to regulate physical activities that actually occur in space, such as with spacecraft and astronauts. I established the claim and then registered it at an Earth-bound registrar. My actual physical activities in this matter occurred on the Earth, not in outer space, therefore Article VI cannot apply.
OST Article VI:
States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.
The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization.
There is also some question as to the encompassing validity of the Treaty’s prohibition of appropriation for non-signators. The Treaty claims to have a legal right to deny the establishment of claims. This can be viewed as a claim in itself for the entire Universe, and is a claim made by some governments to prevent other governments from making claims. This is a circular argument, and as such may be considered invalid by any individuals and countries that have not signed the Treaty. I did not sign the Outer Space Treaty of 1967.
Additional Rationales to Support the Claim
Law of First Sight
The 'Law of First sight' is one legal means that can be invoked for sustaining my claim to 433 Eros. This is a very well developed legal concept, particularly for sunken ships, i.e. ship salvage claims.
Proof of the existence of materials desirable to be mined was created by the NEAR Shoemaker spacecraft project. A viable mining claim can be sustained in respect to the 'Law of First Sight'. Since NASA and the US Government are prohibited by treaty from making a claim, the "first to sight the opportunity" of establishing a valid and viable mining claim is a legal principle that can hold considerable weight in sustaining my claim. That which, I have done.
The OST of 1967 does not fully address mining and there are no provisions for mining claims. Therefore, mining claims by individuals are not prohibited. A legal maxim exists to the effect of "that which is not prohibited, is allowed". This is an ancient principle in law.
No Court Has Jurisdiction.
Since no court in the world has jurisdiction on 433 Eros, which is a privately held property outside their separate and collective venues, my existing claim can not be immediately discounted legally, nor is there a venue in which to contest the claim.
Although beneficial, an affirmative precedent by a court is not a requirement for a valid claim.
The US court system (including US Supreme Court) does not have jurisdiction over OrbDev, the property, or me in relation to this matter. I am not claiming services, military, or legal protection from my country of origin for the property. Legal prosecution against the existing claim cannot occur, because there is no court with venue to adjudicate a motion from a party with an opposing viewpoint. So my claim must stand and be recognized as valid, until the matter can be adjudicated otherwise.
The World Court is very likely to decline to hear the case on several grounds.
1.) Only members of the United Nations can bring cases before the ICJ; individuals or corporations cannot.
2.) The ICJ decides cases based on existing precedent and does not make "new law".
The Basis of Laws Pertaining to Original Property Ownership
Physical possession is not the sole originating basis nor an ultimate basis for property ownership. The pursuit of a thing with intention of possession is the basis for one species of property right. A thing being used, and/or with the infusion of one’s own efforts into the thing, creates another specie of property right. The existence of either of these activities does by deed convert the thing into real property in the eyes of the law.
In that I recorded my claim nearly a year prior to the spacecraft’s landing on 433 Eros is proof that I did intend, was, and am presently engaged in the pursuit of ownership of Eros, with the intention to possess ownership.
My efforts that have been spent publicizing my claim, developing and inaugurating a business plan for a parking lot for grounded spacecraft, pursuing past-due accounts, and defending my claim are infusions of work into my property, creating additional valuable equity in my property right. Also infused into my property right is the work of my many esteemed advisors, who have freely given to me their valuable time and thoughtfully considered opinions on methods and tactics for defending my claim.
Because my claim is prior to any other claim and is infused with the equity of my work, and the work of others, my claim has a higher standing than any other that can be possibly brought forth. This will not change until some entity takes physical possession of 433 Eros and attempts to eject my claim by their usurpation or squatting. Thus the highest right to the property itself is presently mine and it is highly likely to remain mine for a long while. As time continues without an event of usurpation, my rights grow ever stronger.
If my claim can be viewed as unperfected, it cannot be invalid for being imperfect. The claim exists, my full property rights remain valid, and my claim is absolutely not premature nor inappropriate.
Improvements before Physical Possession
Improvements to the property, 433 Eros, can be and have been accomplished virtually. In fact, the information returned from the Near Shoemaker spacecraft is the best example of an improvement to my property and was accomplished remotely. Additional major improvements can be done prior to physical possession. These can include income generation from media rights, issuing tradable securities relating to the future delivery of material mined from 433 Eros, and futures contracts for radiation-safe living volume deep inside the asteroid. The securities would have terms similar to 50-year bonds. As my Master Development Program achieves its milestones, and the redemption of the securities becomes closer to reality, their trading value will increase. This Program will create liquid financial vehicles with a potential for profitable returns, which is a thing that investors seek when they invest.
The tender of securities that are based upon contracts for future deliverables is a well-known and oft-used method of financing ventures. Authoritative acknowledgment of my natural and personal claim to the equity of 433 Eros by the Department of State would not increase government expenses, would originate a method for the collateralization of resources in space, and ultimately will contribute greatly to the construction of multi-purpose industrial space infrastructure.
An officially recognized claim of private ownership for 433 Eros would greatly assist a development program based on equity and futures options value. If Eros development can be undertaken in the near-term, Space infrastructure equipment will be created that will also enable Lunar and Martian development. Eros development will require new heavy-lift launch vehicles, micro-gee mining equipment, long-term habitation systems, deep space power systems, fuel extraction and storage equipment, and other essential space development technologies.
Acknowledging the legitimacy of my claim can rapidly put into motion commercial activities that the authorities do not have the wherewithal to achieve themselves as governments.
Addendum in Support
In principle, the very foundation of a representative form of government resides in the public contract among those governed by mutual consent, which allows government to protect their individual and property rights. If any government or Treaty to which governments adhere makes private ownership of property in space illegal, they've lost their only legitimate footing to BE a government of, for, and by the people who view Space as a frontier.
By officially recognizing my claim to 433 Eros, the US government will be upholding the very foundation of government by consent of the governed. In signing the OST of 1967, the US Government surely wasn't contemplating the destruction of property ownership rights for ever after, outside of Earth, of either it's citizens, or by the citizens of some other country.
By welcoming NASA’s NEAR Shoemaker spacecraft to land on 433 Eros, I have eliminated the possibility of a claim of adverse possession by NASA or the US government, if the space treaty were withdrawn from or ignored. This action preempts NASA's legal status as a private organization able to assert a claim for the very rights that I have asserted. However, a welcome on arrival does not imply free rent for eternity.
Our milieu is becoming more virtual with every passing year. Internet addresses are property, and they are completely virtual with no physicality. The right to that class of property is generally given to the first claimant. Improvements of 433 Eros from a distance have been undertaken virtually, which has further increased the stature of my claim. Additional virtual or remote improvements can be done in regard to 433 Eros prior to my physical possession of it. Virtual equity development is a standard and common way that our milieu is progressing.
It does not matter who is the original owner of a property. Natural Commerce will determine the best use for any property. Official recognition of me as having the highest ownership rights to 433 Eros will make possible the best and highest use of the asteroid if not by me, then by my successors in ownership.
The claim for 433 Eros is a pronouncement by Natural Person.
The Claim thus exists.
Once pronounced, it exists and can be publicized.
If the claim is in an uncharted area of law, it is absolutely not immediately dismissable, in fact, it is quite the opposite situation. If the claim is not in violation of any laws, if it does not encroach on any previous claim, and especially if the qualities of the claim can trace a history of reasonable precedents, it is in fact a very valid claim.
A carefully worded claim can not be in itself invalid, nor can it be invalidated unless it is adjudicated. Although beneficial, an affirmative precedent by a court is not a requirement for a valid claim. A claim for a property outside of any jurisdiction of venue cannot be contested, because no opponent can bring a motion to the bench.
Therefore, my claim for 433 Eros is completely valid. One of the claim's best qualities, is that it is a claim prior to any other. This makes my claim superior to any subsequent claim in this fundamental specie of property right.
The "first sight" quality of my 433 Eros claim is in relation to: "Seeing the opportunity to make the claim." I was the first natural person to recognize that a fully legal and valid claim could be made in Law, and be evolved to a higher right by the "improvement of the property" which would be created by an in-situ survey of 433 Eros' elemental composition. That survey has been conducted with the NEAR Shoemaker spacecraft.
The infusion of work into the property raises its inherent equity and increases the standing of an established property right by invoking an additional specie of property right. The work that has been done to date, including the mineral survey by the NEAR Shoemaker spacecraft, increases the value of the property’s equity. Because my claim was prior to the spacecraft’s landing, and NASA and the US government are prohibited from making a usurping claim, that equity value has been enfolded into my property right, because my right is the highest right extant.
It is interesting to note that I do not have to own the NEAR Shoemaker spacecraft to use its ability to improve the property to evolve my claim to a superior level. The data itself from the spacecraft is not the improvement I am referring to. It is the inherent knowledge contained in the dataset. The data is in the public domain, the inherent knowledge that valuable materials are proved to exist, is the increased value that has been enfolded into and has elevated my own property rights.
The 1967 OST should be amended to create a property regime that clearly recognizes private property rights and gives the equity of the property over to private concerns for development. The law seldom leads. Laws and Treaties are developed to address problems that arise when reasonable people, engaging in reasonable associations, disagree. However, the ambiguity of law in this matter cannot be a rationale for the delay of payment of rightful fees that are past due.
I believe that I have presented a very strong case in support of my existing property right to ownership of 433 Eros. I therefore request timely payment of the parking/storage fees which are now past due. Time is of the essence in this matter and I consider myself and my material plans to be harmed by unreasonable or unnecessary delay of payment.
The Archimedes Institute is simply a venue where people may register property claims and interact in a reasonable way. The Institute’s policies were always intended to be a starting point for formal discussions on Property Rights in Space by governments. I can only hope that my own small efforts will apply some instigation to the governments, so they will address this extremely serious shortcoming of the present state of Space Law.
Founder, Orbital Development
Gregory Nemitz on the Property Right to 433 Eros:
"With this toehold, I will climb a mountain in Space."