Stake Your Claim

Real estate speculators set their sights on lunar homesteads.

Ten percent of the land area of the United States was claimed and settled under the 1862 Homestead Act. Before the law expired in 1986, it gave hopeful settlers title to 270 million acres of America's once-public domain. The price for a 160-acre homestead was $18 and five years of hard work farming or developing the property. Could private citizens get a similar bargain on the moon?

"The most valuable real estate in the solar system . . . for the next 100 years . . . are the North and South poles of the moon," says Klaus P. Heiss, director of High Frontier Inc., a think tank that helped develop the framework for President Reagan's Strategic Defense Initiative in the 1980s. The Alexandria, Va.-based company still advocates a strong U.S. response to the ballistic missile threat, but these days it makes more frequent headlines promoting space exploration and moon base applications.

U.S. space policy calls for a return to the lunar surface by 2020 with the ultimate goal of establishing an extended human presence there. Not merely a strategic high ground, the moon is a convenient launching pad for expeditions to Mars and a distortion-free perch for astronomical observatories. It's also rich in natural resources that the government and private sector want to exploit as soon as transportation is available.

NASA's two-year effort to launch an Apollo redux half a century after the first landing has revived one of the most enduring debates of the Space Age. "Can I own that 'back forty' on the moon?'" asks Washington-based attorney James E. Dunstan, one of only a handful of practicing space lawyers in America. Not if he landed there today. "The fact is," says Dunstan, "there are no property rights in space." It's a fact that could spell trouble for the Bush administration's moon program, which will rely in part on commercial initiatives.

A nascent NASA plan to offer a multimillion-dollar prize for a privately developed "lander analog" that can probe the surface is just one among a host of federal activities that are boosting private sector buzz about opportunities on the moon. What rights could a company claim if it beats the government to the goal?

Two international treaties prohibit ownership of the moon and other celestial bodies. At a late October seminar on space settlement, presented by science and technology policy fellows at the National Academies, Dunstan and Heiss argued for a change in the rules. They might disagree on how it ought to be structured, but both say a legal framework for staking claims is necessary to attract private investment in space exploration. "Our noblest challenge over the next decade is to make sure that there's a place for the private sector in the private economy," says Dunstan, author of the lease that authorized Holland-based MirCorp to try to operate the Russian space station Mir commercially several years ago. It didn't work partly because Mir was deorbited under U.S. pressure.

Heiss, an Austrian-born economist who conducted the feasibility study for NASA's space shuttle in 1971, would adapt the terrestrial principles of homesteading and offshore oil and gas bidding to commercial development of the moon. He is proposing a "futures market" involving all civilian and military federal agencies with space responsibilities, space agencies from other governments, and global industry. The market could auction property rights or dole out parcels, depending on how it was set up.

Heiss also is promoting a colonization approach based on the business venture that led to the settlement of Jamestown, Va. In 1606, King James I of England chartered a joint stock corporation, the Virginia Company of London, to find gold and a water route to the Orient. The company landed in the Chesapeake region in April 1607, empowered to appoint a government for the first permanent English settlement in America.

Heiss would structure the legal framework for a moon base around the 1776 Virginia Declaration of Rights. It inspired the opening paragraphs of the Declaration of Independence and became the basis for the Bill of Rights. According to Heiss' interpretation, the pursuit of property is its central theme.

Dunstan suggests a less U.S.-centric approach. He would apply the United Nations' registration convention for objects launched into space. By the convention, the International Telecommunications Union of the UN assigns operating slots to orbiting satellites, which must be registered using specific coordinates and country of origin. A registrant has exclusive domain over a particular spot for the length of the registration. The $10 billion satellite industry grew out of this system-and thrives without real property rights. Similarly, by Dunstan's plan, the slot for an object landed or built on the moon would be bounded by the coordinates of its corners. "It looks and sounds an awful lot like a property claim," he says, "and I think this is, in fact, a viable way to go forward."

If anyone ever does decide to homestead or otherwise settle the moon, he or she might have to strike a deal with entrepreneurs who already have tried to stake claims on lunar territory through loopholes in the multilateral treaties governing activities off the planet. The 1967 Outer Space Treaty voids claims of national sovereignty on the moon but doesn't specifically prohibit ownership by private individuals. The 1979 Moon Treaty aimed to fix that problem by declaring the moon the heritage and property of all mankind, but the United States never signed it.

All that gave businessman Dennis Hope reason to believe that he could claim the solar system as his own. He filed legal documents to do so in 1980 and began selling deeds to lunar land for about $20 per one-acre parcel. His Nevada company, Lunar Embassy, boasts some 2.5 million happy customers in 80 countries. Not one of them is China, despite that nation's lunar ambitions. On Nov. 7, the government-run Xinhua News Service reported that authorities in Beijing shut down a two-month-old Lunar Embassy franchise for violating Chinese laws against speculation and profiteering.