Pedis possessio and asteroids

Pedis possessio, a Latin term which means “possession-of-a-foot”, is a principle or doctrine of mining law, according to which a qualified person who peaceably, and in good faith, enters a land in the public domain in search of valuable minerals, may hold the place exclusively against others having no better title, provided the person remains in continuous exclusive occupancy and, diligently and in good faith, prosecutes work towards making a discovery. This principle provides a person exploring an area freedom from fraudulent or forcible intrusions, while actually working on the site.

In the context of space law and that of the lawfulness of space mining activities, could the principle of pedis possessio interest space lawyers?

The General Mining Act of 1872

Congress enacted the first federal mining law in 1866, when natural resources seemed unlimited. The law invited citizens to prospect on public lands, and enabled them to acquire legal title to both the minerals and land within a claim on which they discovered a valuable mineral. In 1870, Congress enacted legislation supplementing the first mining law; two years later, Congress amended and consolidated those early laws, in the more comprehensive General Mining Act of 1872.

The General Mining Act of 1872 is a United States of America federal law that authorises and governs prospecting and mining for economic minerals, such as gold, platinum, and silver, on federal public lands. This law, approved on May 10, 1872, codified the informal system of acquiring and protecting mining claims on public land, formed by prospectors in California and Nevada from the late 1840s through the 1860s.

All citizens of the United States of America, eighteen years or older, have the right under the 1872 mining law to locate a lode (hard rock) or placer (gravel) mining claim on federal lands open to mineral entry. These claims may be located once a discovery of a locatable mineral is made. Locatable minerals include, but are not limited to, platinum, gold, silver, copper, lead, zinc, uranium and tungsten.

Miners and prospectors in the California Gold Rush of 1849 found themselves in a legal vacuum. Although the U.S. federal government had laws governing the leasing of mineral land, the United States of America had only recently acquired California by the Treaty of Guadalupe Hidalgo, and had little presence in the newly acquired territories.

Miners organised their own governments in each new mining camp, and adopted the Mexican mining laws then existing in California that gave the discoverer right to explore and mine gold and silver on public land. Miners moved from one camp to the next, and made the rules of all camps more or less the same, usually differing only in specifics such as in the maximum size of claims, and the frequency with which a claim had to be worked to avoid being forfeited and subject to being claimed by someone else.

The General Mining Act of 1872, enacted with the dual purpose of encouraging mineral development and promoting settlement of the West, allowed prospecting on unappropriated public lands. Under the statute, a prospector who discovers a valuable mineral may acquire fee simple title to the land within his claim. The statute, however, does not define a prospector’s rights during the exploration period before he actually discovers minerals; prediscovery rights are governed by the state common law doctrine of pedis possessio.

Prediscovery rights and pedis possessio

Pedis possessio protects a prospector who is diligently searching for minerals on public land against forcible, fraudulent, surreptitious, or clandestine entries by rival prospectors onto land which the prospector is occupying. Originally applicable only to the ground in the immediate area of a prospector’s workings, pedis possessio rights have then been generally deemed to extend to the boundaries of the claim a prospector was working, so long as the claim was clearly staked.

The classic enunciation of the doctrine of pedis possessio appears in dicta in the United States Supreme Court’s 1919 opinion in Union Oil Co. v. Smith. The Court stated that a prospector actively searching for minerals in the public domain is entitled to protection of the land he occupies against forcible, fraudulent, clandestine, or surreptitious intrusions. The Court identified the essential requirements for pedis possessio protection as continued actual occupancy of a claim, diligent work directed toward making a discovery, and exclusion of others. If any of these elements is missing, no protection is provided by the doctrine, and the initial prospector is left without special rights against his competitors.

  1. Persistent and Diligent Work toward Discovery. Persistent and diligent work toward mineral discovery traditionally has been required on each claim for which protection is sought. Satisfaction of the work requirement has almost invariably consisted of actual digging or drilling on the specific claim sought to be protected. Acts of location such as posting, marking, monumenting, staking, and recording are not considered work leading toward discovery. Similarly, patrolling a claim, watching over it, or placing signs, fences, or caretakers on it does not satisfy the work requirement, although such activity might help meet the occupancy and exclusion requirements.
  2. Actual Occupancy. Closely related to the work requirement is the requirement described in Union Oil as “continued actual occupancy”. Subsequent court decisions have reiterated that pedis possessio occupancy must be “actual”, not constructive. Because the United States of America retains title until after discovery, the common law principle of priority based upon “colour of title” is not relevant in possessory actions under mining law. Pedis possessio doctrine does allow constructive possession in the limited sense that a prospector may assert pedis possessio rights over the full area of a claim even though he is only working on a portion of the claim.
  3. The Exclusion Requirement. Pedis possessio protects a prospector against only forcible, fraudulent, clandestine, or surreptitious entries; if a claimant allows a rival to enter peaceably, without deceit or secrecy, the claimant loses his superior status. Accordingly, a prospector seeking pedis possessio protection must actively deny entry to rivals. Whether this requirement is met does not depend upon whether a prospector has or has not granted permission to rivals to enter; because federal lands are open to all citizens for prospecting, no permission is necessary.

Pedis possessio and asteroids

The doctrine of pedis possessio, which was first developed in ancient Rome, most generally grants ownership to the first person to set foot upon and claim formerly unclaimed property in the public domain. The 1967 Outer Space Treaty makes appropriation of celestial bodies impossible, but it might be argued under the doctrine of pedis possessio that, because asteroids are within the public domain, prospectors are granted the exclusive and unimpeded right to any resources they seek to extract.

Regarding claiming ownership over asteroidal resources, it appears that the ancient Roman law of pedis possessio will apply. Pedis possessio is the basis for Western law on ownership, and analogies have long existed in other parts of the world as well”.

Earth’s natural resources are already under pressure from the planet’s growing population, estimated to reach nearly ten billion by 2050. Rising demand for resources will eventually push the economic balance in favour of harvesting resources from space to sustain our lives on Earth.

The space industry is undergoing an extraordinary evolution. As national budgets tighten, governments are increasingly seeking to involve the private sector in all aspects of space transportation and exploration, which private companies are keen to do as the commercial imperative transforms the economics of outer space.

Both established players and start-ups are using lower cost technologies – including nano- and microsats – to build innovative systems and services in Earth observation or satellite communications. Private companies are already successfully delivering cargo to the International Space Station (ISS). Others are keen to develop the launch and hosting capabilities to take humans to the ISS, the Moon or even Mars. There is a recreational side, too. Space travel companies promise an exhilarating ride to the edge of our atmosphere and are actively offering seats on their future spacecraft.

Is in situ resource utilization, regarding the 1967 Outer Space Treaty, legal? The idea of using space resources was already around when the 1967 Outer Space Treaty was concluded at a time when the United States and the former Soviet Union were competing to reach the Moon. Let’s recall that Article II of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (entered into force on October 10, 1967) states that “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”.

This Article II, with the development of private projects of mining asteroids or the Moon, and the advent of two laws enabling those practices (the Commercial Space Launch Competitiveness Act of 2015 and the Loi du 20 juillet 2017 sur l’exploration et l’utilisation des ressources de l’espace), is today subject to many debates.

As for whether space mining is legal or not, the doctrine of pedis possessio could be applied – and thus become a first step – to the prediscovery phase of prospection in outer space. This model of practise could be applied to prospectors in outer space, looking for resources, and hence give rights to private companies looking for precious minerals, gases or liquids.