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Bigelow to press US government on lunar property rights

Tuesday afternoon, NASA and Bigelow Aerospace held an event at a downtown Washington hotel to discuss the delivery to NASA of a Bigelow report on commercial lunar exploration architectures. That report, as I summarized yesterday at NewSpace Journal, calls for the use of a COTS-like model to allow NASA to partner with industry (including Bigelow) to develop capabilities to enable human spaceflight activities beyond Earth orbit, including in orbit around and on the surface of the Moon.

The report also emphasized the need for a lunar property rights regime. Companies “must known they will be able to (1) enjoy the fruits of their labor relative to activities conducted on the Moon or other celestial bodies, and (2) own the property that they have surveyed, developed, and are realistically able to utilize,” the report states. And, in a point emphasized in the report in bold, italic, and underlined type: “Without property rights, any plan to engage the private sector in long-term beyond LEO activities will ultimately fail.”

At yesterday afternoon’s event, Bigelow Aerospace founder and president Robert Bigelow indicated that the company plans to press their case for lunar property rights in the near future. “Bigelow Aerospace will be making an application to the FAA/AST [Office of Commercial Space Transportation] for a policy review pertaining to lunar property rights before the end of this year,” Bigelow said.

That policy review would take advantage of the FAA’s ability to perform a policy review of a license application, which involves interagency consultation. “I think it’s abundantly clear that, in terms of establishing lunar property rights or even making that request, that the FAA/AST is the proper gateway to begin that process,” said Mike Gold, Bigelow Aerospace’s chief counsel and head of the company’s Washington office, citing that interagency review process. “I know it sounds like a lot for one company or one request, but that is actually the way the process goes from a legal perspective.”

Bigelow Aerospace doesn’t have immediate plans for a lunar base, although it is a long-term goal for the company; it’s focused for now on developing orbital habitats and awaiting the developing of commercial crew transportation systems before launching those modules and lining up customers for them. So why press for it now? “We think that, first of all, this is not an overnight process, and that is probably the main reason why we are starting on this,” Robert Bigelow said. “We want to galvanize support where we can, and find out where the most significant support is derived from.”

“I have a more pessimistic view of the need for property rights,” he added. He cited an unnamed foreign country that has “significant ambition” in space and “significant financial resources”—a not-so-veiled reference to China. “It’s very possible that, in another dozen years, America could have quite a surprise.” Bigelow has previously stated his concerns that China could claim the Moon as its territory, although that view is not shared by those that closely follow Chinese space efforts.

31 comments to Bigelow to press US government on lunar property rights

  • Thank you, Jeff, for being the one-man tweet force yesterday keeping us apprised of what happened at the Bigelow event. I’ve yet to find a recording.

    We all know Bigelow is a bit nutty, e.g. his obsession with UFOs. Even if China made claims on the Moon, no other nation would recognize it. Good luck defending your one small crater; it’s a big Moon and all the other spacefaring nations can go elsewhere.

  • DCSCA

    “I have a more pessimistic view of the need for property rights,” he added. He cited an unnamed foreign country that has “significant ambition” in space and “significant financial resources”—a not-so-veiled reference to China. “It’s very possible that, in another dozen years, America could have quite a surprise.”

    ‘Red Moon,’ eh.

    Perception is reality in politics and business alike. Which makes a drive to establishing a permanent foothold on Luna, seen around the world by all peoples in their evening skies, all the more imperative for the United States in this century. A Government led and managed effort.

    Commercial is welcome to come along for the ride– to supplement and service an exploration/exploitation outpost on Luna, established and operated by governent(s). But commercial will never lead the way in establishing such a facility on their own. The largess of the capital requirements involved coupled w/t low to no ROI prevents it; the very parameters of the market it is trying to create and service. That’s why governments do it.

    China will go to the moon as a loss leader to hallmark this century as theirs.

    Accordingly, the rationale for HSF by the United States government in the 21st century was made in the 20th century by Presdient Kennedy. It is as valid today as it was in 1961:“We go into space because whatever mankind must undertake, free men must fully share.” And as the recent PBS special on JFK reminded viewers, the ;unar commitment was less about science and trechnology and all about projecting geo-political intent by the United States. Back then, the message was meant for the Soviets. today, it’s the PRC.

    • Coastal Ron

      DCSCA said:

      China will go to the moon as a loss leader to hallmark this century as theirs.

      They can’t even machine metal properly for a Delta IV class rocket. I don’t think we have to worry about them taking over the Moon.

      Musk is far likely to send humans to Mars far before the Chinese send humans to the Moon. And once people start going to Mars, ALL nations will forget the Moon anyways. Who wants to live on an airless void? Maybe it’ll be a stopping off point on the way to Mars, but I don’t see many people wanting to raise families there.

      The largess of the capital requirements involved coupled w/t low to no ROI prevents it; the very parameters of the market it is trying to create and service. That’s why governments do it.

      You mean, that’s why governments DON’T do it. The Apollo program was a response to the Cold War, and we have no analogy for it today. None. Nada. ZERO.

      Need proof? The U.S. has not been able to sustain a HSF BEO program since Apollo. The SLS, which doesn’t address any of the real needs for doing HSF BEO, will never become operational nor affordable.

      If anything, the private sector has been moving further and further out into space, and they are our only hope if we are to ever expand humanities presence out into space. The Government is welcome to come along for the ride, and even pay for some of the effort, but OUR government is unlikely to ever see the need to lead on this front ever again.

      You Lunar-tics are just going to have to live with that… ;-)

      • Mader Levap

        “Who wants to live on an airless void?”
        Who wants to live on frozen wasteland? Oh right, for some reason many talk about it. At least one guy does something (Musk), but he is no miracle worker. I can’t fathom him dying on Mars – he was born too early. He has real shot for Moon, though. Shame he is not interested.

      • Vladislaw

        I believe going to Mars will have the opposite effect on Luna. Especially if a colony claims property rights. “Well we can’t afford mars but we could try something on the moon.”

  • Jeff, are you aware of the Bigelow report surfacing anywhere online? I haven’t found it yet.

  • amightywind

    Had the US rightly and prudently claimed sovereignty over lunar territory 40 years ago the Russians and Chinese would not be a concern. There will be a continuing price to pay for abandonment of Project Constellation. The US could have dominated BEO for the foreseeable future. Now, we are reduced to conducting ‘torch runs’ with also ran nations on the ISS.

    • Ben Russell-Gough

      You think that the Chinese and Russians wouldn’t have just ignored a claim that couldn’t be made to stick? No territorial claim is worth even paper if the one making the claim can’t enforce it and, right now, no-one can do so.

      Lunar ‘ownership’ will start with small patches of land around various permanent and semi-permanent facilities. It won’t be the ownership of treaty or official claim, it will be the ownership of fact: “We have people here and are sustaining them here; you can only come here with our permission or by an act of war.”

      • Vladislaw

        Actually the Outer Space treaty does allow a quasi ownership of sorts. If a Nation drops hardware on the moon, they retain ownership of the hardware and the immediate vacinity is also protected. A kind of “national park” as it were… I believe it explains the rash of countries that started dropping hardware on it. Japan, India, China etc…

    • Michael Kent

      “There will be a continuing price to pay for abandonment of Project Constellation.”

      That’s true. Without Constellation the United States will not land its first crew back on the moon in the year 2035. Nor will land only two four-man crews on the moon for a one-week stay every year thereafter with no money for lunar habitats, manned rovers, EML stations, or deep-space habs.

      Considering the commercial market that will develop over the next 22 years, I doubt many people are losing sleep over Constellation.

  • Andrew Swallow

    The Chinese Government does not consider Property Rights important, look how they treat their own people. Any company or organization operating on the Moon will need British or US Government protection for its land.
    http://www.bbc.co.uk/news/world-asia-china-16193089

    Wukan unrest: Why do Chinese farmers riot?
    By Michael Bristow BBC News, Beijing
    15 December 2011

    {snip}

    Farmers who complain about land grabs often find no sympathy from the local authorities, the courts or the police – and sometimes are themselves accused of stirring up trouble.
    {snip}

  • Daniel Kerlakian

    The Outer Space Treaty, ratified by both the U.S. and China, probably prevents Bigelow from claiming property on the Moon. Article I states “Outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries,” and there “shall be free access to all areas of celestial bodies.” Article II builds on the principles in Article I by claiming “Outer space … is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” Article VI holds states responsible for any activities in outer space “whether such activities are carried on by governmental agencies or by non-governmental entities.”

    Neither the U.S. nor China are signatories of the Moon Treaty which explicitly forbids Biigelow’s intentions, but the Free Access clause of the Outer Space Treaty would be a huge hurdle to overcome.

    • Ferris Valyn

      There is an argument (which Bigelow Aerospace asserted at the event) that the OST does NOT prevent property rights.

    • Vladislaw

      The moon treaty was drawn up to close a preceived loophole that the Outer Space Treaty did not spell it out about individual ownership or corporate ownership. No space power has ratified the moon treaty .. for that exact reason.

  • Dark Blue Nine

    “‘It’s very possible that, in another dozen years, America could have quite a surprise.’ Bigelow has previously stated his concerns that China could claim the Moon as its territory, although that view is not shared by those that closely follow Chinese space efforts.”

    China will robotically land on the Moon and maybe return samples over the next 12 years. But no taikonauts will walk on the Moon. China is committed to a space station for the next 19 years:

    “‘China Space Station (CSS) will operate in orbit from 2022 to 2032. This period will provide much more opportunities to scientists in China and all of the world after the international space station,’ Gu Yidong, president of the China Society of Space Research, said at the American Society for Gravitational and Space Research conference here Nov. 3 – 8.”

    Bigelow’s Chinese competition won’t be on the Moon but in Earth orbit, drawing potential sovereign customers away from his inflatable stations. He should probably focus on that.

    “Companies ‘must know they will be able to (1) enjoy the fruits of their labor relative to activities conducted on the Moon or other celestial bodies, and (2) own the property that they have surveyed, developed, and are realistically able to utilize,’ the report states.”

    I’m all for an explicit recognition of property rights on the Moon or anywhere else in the solar system. That said, nothing in the OST prevents a private entity from providing services on and/or selling products made from a celestial body. And practically speaking, if another county did raise an objection, there will be no foreign presence capable of enforcing their opinion for decades to come (if ever). As long as Bigelow isn’t stupid enough to bank in a foreign country objecting to his lunar activities, his profits will be safe. Modification or withdrawal from the OST for the purposes of a lunar resort is unlikely to get on State’s to-do list. If I were Bigelow, I would prepare myself to move forward without changes/withdrawal from OST.

  • Dave Huntsman

    I’m concerned that Bigelow’s China fear and insistence on putting property rights as a high-priority fight will end up obscuring what appears to be the larger and better messages of the report, i.e.., expanding the use of the COTS model for cis-lunar development.

    • Andrew Swallow

      The COTS model has to be sold to a small number of people in NASA and Congress. The companies with COTS and CCDev agreements will ensure that they get to know about that part of the report.

      Property rights in space has to be agreed internationally, a lot more people will be involved in that. That is the part that you tell the press.

  • Andrew Swallow

    Article VI of the Outer Space Treaty allows a second class form of property rights using permits issued by the US Government.

    “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”

    So permits to mine an area plus construction permits to build roads, bases and landing pads could be issued by the United States Government under the Treaty. The permits could contain clauses telling people to behave and to be tried for crimes in a Federal Court. A new US Federal law authorizing the issuing of these permits can be passed anytime Congress likes.

    The lobbying to get a new treaty can form a second stage.

  • red

    Here’s a comment that I had on another site on a post about the COTS celebration that seems to also fit here where Bigelow is calling for more COTS-like efforts:

    Yet other than commercial crew, what programs are planned to use that model? Could we count BEAM or some of the other technology demonstration missions? I realize that given parochial Congressional politics squandering most of the available funding, multiple large COTS-like programs aren’t likely, but you would think that some smaller COTS-like efforts could be started here and there within various corners of NASA’s budget.

    The ISS could afford and benefit from some small COTS-like efforts (micro-reentry vehicles, additional capabilities for ISS itself or as small companion mini-stations or labs, additional cargo capabilities that could be made available by the commercial crew/cargo vendor vehicles or others, etc). NASA Technology could use a COTS-like approach in areas like satellite servicing, smallsat technology demonstrations, and new suborbital capabilities. NASA Science could use a COTS-like approach in areas like Earth observation and (possibly in partnership with NASA HSF) NEO surveys or scouting.

    Yet nothing seems to be on the horizon, and the commercial space interests don’t seem to be pushing for anything specific except for cislunar HSF commercial services that are likely to be too expensive even with a COTS-like approach to be funded, too close to the commercial crew and SLS/Orion territory to get any funding until one or both of those programs are done, and too high-profile to be accepted by a hostile Congress.

    • Fred Willett

      Nanoracks has flown over 100 experiments to ISS for various people.
      They buy space on ISS from NASA to house their equipment. I’m not sure of the financial arrangements but what ever they are it seems to be working out OK.

  • Fred Willett

    The need for property rights on the moon and elsewhere may be closer than you think.
    SpaceX is planning to start recovering their F9 first stages from February next year. They are already saying a reusable first stage will attract a 30% discount.
    That will drop the cost to orbit from $56M to $40M a launch.
    As well SpaceX is developing a larger methane engine – the raptor. Presumably to power a bigger upper stage with more margin for reusability.
    Is a fully reusable launch vehicle just around the corner? I wouldn’t bet against it myself.
    Recovering the first stage was the hard part. Nobody had ever done it and Musk is saying they’ve got that problem licked. The initial flight of the F9 v1.1 got to 3 meters above the surface of the ocean all in one piece, and would have landed except for a spin problem Musk says is totally solvable.
    So that leaves 2nd stage reusability and that is less of a problem than you might think. After all we’ve lots of data on how to recover stuff from orbit. Data from Mercury, Gemini, Apollo, Shuttle, and, of course, Dragon.
    So launch prices are starting to fall.
    Basic economics states that if prices fall demand goes up. SpaceX says they’ve already seen this increase in demand just from the lower price of their rockets compared to the rest of the launch market.
    So if reusability starts to bite into launch prices in a big way – As seems likely – then people, businesses et al will be going to the moon and points beyond in a matter of years.
    Getting some action on property rights for lunatics might be a matter of some urgency.

  • Vladislaw

    ““Without property rights, any plan to engage the private sector in long-term beyond LEO activities will ultimately fail.””

    How many times have a dragged out that dead horse and beat it with a stick? Almost a decade? I do feel this is the big one that has to be delt with.

  • Brian Weeden

    The kind of full-fledged property rights Bigelow is calling for does not exist for geostationary orbit, and yet there’s somehow a $100 billion a year business established around exploitation of that region.

    The same can work for the Moon. The key is, as Andrew points out, a set of property rights that fall short of full-on sovereignty but are enough to reduce uncertainty and create value.

    All it requires is the US to develop a licensing scheme for private sector exploitation of the Moon under the existing legal framework, just as they did for commercial communications satellites and remote sensing in Earth orbit.

    That won’t satisfy the libertarian idealists who want space to be the first domain free of government interference, but it will open the door to the private sector. And of course it won’t please the CHM crowd who insist commercial exploitation is evil, but that is just as big a pipe dream as zero government interference.

    • Hiram

      It’s not quite a “full fledged property right”, but geostationary allocation is managed by the International Telecommunication Union (ITU), a United Nations agency for communication technologies that has hundreds of international members that abide by it. Any “exploitation” of that region is carefully regulated by international agreement. You don’t just fire up a geosat and stake a claim. Sure, one could do the same for the Moon. Makes sense to model it on the ITU. I don’t think it’s up to the U.S. to develop an international licensing scheme, however, and the U.S certainly didn’t do it for geosync comsats. Of course, NOAA licenses commercial U.S. space reconaissance satellites, mainly for national security purposes, though that hardly allocates orbital elements, and has no jurisdiction over such satellites from other countries.

  • Brian Weeden

    The reason for the ITU is not to establish property rights but to coordinate use of the spectrum which is a limited natural resource. And the allocations made by the ITU are to governments, which in turn license companies to use those allocations. That’s the way international law works – states sign the treaties (such as the ITU Convention) and then are responsible for implementing them through national law and regulation.

    The Moon does not have the same congestion issues as spectrum allocation (at least not for the forseable future) so there’s no need for an ITU-like structure.

    It comes down to nation states licensing outer space activity within the constraints of the existing treaties. No need for a new treaty or an abolishing of the existing treaties to enable commercial activities on the Moon.

    • Hiram

      “The Moon does not have the same congestion issues as spectrum allocation (at least not for the forseable future) so there’s no need for an ITU-like structure.”

      I have to wonder if that congestion is forseeable sooner, rather than later. If there are riches to be made with lunar material, it stands to reason that some places are much better than others to do that. As per Constellation, it’s pretty clear that the best places to harvest polar volatiles, places that are near power-friendly sites of nearly continuous sunlight, are HIGHLY limited. We’re talking dozens of acres. Things could well get pretty congested in places like that.

      One wonders when we’re going to see the first fence erected around a high point on the rim of Shackleton crater.

      • Coastal Ron

        Hiram said:

        As per Constellation, it’s pretty clear that the best places to harvest polar volatiles, places that are near power-friendly sites of nearly continuous sunlight, are HIGHLY limited. We’re talking dozens of acres. Things could well get pretty congested in places like that.

        Scarcity does not in itself create a need. Until there is a need for what is on the Moon, then talk about demand is premature.

        For instance, water is cheap here on Earth, and as launch prices continue to fall the cost of acquisition for lunar sources has to fall too to stay competitive. Local lunar demand/use is likely the first place that will drive the need for harvesting lunar water, but until we have a substantial human presence on the Moon, shipments from Earth are actually less expensive initially.

        I hope that we eventually do have enough people on the Moon someday to merit the discussion of who has the rights to mineral extraction, but no government on Earth has shown significant enough interest so far in supporting enough activity to merit serious discussion.

        • Hiram

          “Scarcity does not in itself create a need. Until there is a need for what is on the Moon, then talk about demand is premature.”

          I agree completely, which is why I prefaced my comment with the words “If there are riches to be made with lunar material …”. The discussion about property rights is, in that respect, an academic one. Given that there may well not be riches to be made in this way, one has to wonder about why fences might be erected on the Moon anyway. I suppose if someone has a habitat on the Moon where astronauts are deployed to twiddle their thumbs, one might like to have a fence to protect their view.

  • Gregori

    He is using fear to sell rope.

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