posted 07-03-2011 02:41 PM               

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Originally posted by chet:
Abandoned property doesn't become unabandoned because somebody changes their mind -- the law just doesn't work that way.

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A painting abandoned on a rubbish dump in Ireland was found by a fisherman. His daughter had it valued and it was found to be by an important American artist and worth several thousand pounds. It was put up for sale and the original owners saw the sale reported in a New York paper, contacted the aution house and laid claim to it. The lawyers decided that this was quite legal and the picture was withdrawn from sale. There are still arguments about how much compensation the finders should receive - they were offered 30% of the sale value - and the painting remains locked in the vaults of the auction house.

posted 07-03-2011 02:48 PM               

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Originally posted by rjurek349:
You can not speak with absolute certainty - nor use such a charged word as "nefarious" without knowing all the facts...

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posted 07-03-2011 04:35 PM               

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Originally posted by moorouge:
Whilst not entirely a direct comparison to Mitchell's camera, it does point to the way the law might apply, does it not?

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First, it can't be determined from the details provided whether the painting was ever actually abandoned, and there's a big legal difference between property that is abandoned, or mislaid or lost. (For example, it's possible the painting was mislaid by the owners during a moving, and they didn't discover it was missing until they found about it being in an auction. That is NOT abandoned property because in such an instance there was no INTENTION of abandonment.

Imagine also a scenario where a thief steals an object, then claims he "found" it in a garbage dump, and says it was just abandoned property. That's why the law, in the U.S. at least, emphasizes the importance of the concept of intentionality when defining what is abandoned and what is not).

In the scenario you described the fisherman (or his daughter) may not be able to claim the painting was his to auction (since he might need to demonstrate the painting was intentionally thrown out or abandoned by those claiming to be the rightful owners). But the "rightful owners" might also bear the burden of having to prove or demonstrate the painting was actually theirs, or the law will, in most cases, go by the reasoning that the one in possession of the painting, in lieu of convincing evidence otherwise, is the rightful owner.

posted 07-03-2011 05:26 PM               

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Originally posted by chet:
It may have been left there, but as long as its been stated that the items aren't intentionally abandoned, they aren't. The same cannot be said about Mitchell's camera.

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If a nation's spent rocket stage slams into another nation's satellite and destroys it, or if it reenters and falls on to another country and destroys a small city, the nation whose hardware it was cannot claim it was abandoned, however old or useless it was at the time of the incident.

All nations party to the treaty (and that includes all spacefaring nations) retain ownership over all their space hardware in orbit, on all celestial bodies, and when either brought or — by natural decay — delivered back to Earth.

For that status to change, the nation must take purposeful action to transfer ownership. For example, the Russians sold Lunokhod 2 to Richard Garriott in 1993.

But even if for the sake of discussion, one were to entertain that NASA did intend to abandon the camera (along with the rest of Antares' ascent stage), Mitchell removed the camera before it was (hypothetically) abandoned. At the time the camera was removed from the lunar module, Antares was still a functioning U.S. spacecraft — the complete opposite of abandoned.

It is as if a U.S. Treasury worker could claim ownership over thousands of dollars in old currency because he decided to save it from being shredded.

No, Mitchell was absolutely right that he needed permission from NASA to retain the camera — just as he and every other astronaut needed permission to keep all the other spacecraft parts and equipment they retained.

posted 07-04-2011 06:14 AM            

My question is how does said DAC come into Mitchell's personal possession after landing?

Does he keep it on his person? Or is it claimed in some way that processing staff are aware that he has claimed it, and see that it finds its way to him? Would there be some record of this? My mind always wonders what I would bring back with me. I'd have brought my lunar overshoes, gloves at the very least. But that's with my collector head on. If I was the professional, trained astronaut, I'd probably be more focused on the mission.

posted 07-04-2011 09:34 AM               

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Originally posted by SpaceAholic:
(because its return was unplanned)

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As was pointed out to me earlier this morning and subsequently cited in the summary article I published on this topic, according to Deke Slayton, the list of spacecraft parts to be returned as mementos was separately inventoried and approved prior to launch but like the personal preference kits' (PPKs) contents, the list was privy to the crew members only.

A September 1972 interview with Donald "Deke" Slayton, head of NASA's astronaut corps at the time of Apollo 14, states that an inventory of every spacecraft part to be returned as a memento was created ahead of the mission launching.

"They give me a list of things they're going to bring back," Slayton, who died in 1993, told the Tucson Daily Citizen. "I give it to the program office and they bring 'em back."

Anything registered on the list was considered "legal" for the astronauts to keep, but Slayton insisted on restricting the list to the astronauts' eyes only. "It's the astronauts' personal business," he told the newspaper.

posted 07-04-2011 09:47 AM               

For example, see Irwin, James B. "To Rule The Night", Philadelphia & New York, A. J. Holman Company (1973). On page 91, Irwin writes that after he and Dave Scott left the moon and rendezvoused with the CM and were transferring their equipment from the LM, "Dave and I wanted a few personal souvenirs, so we took the utility lights and other loose parts off the Lunar Module."

posted 07-04-2011 09:55 AM            

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Originally posted by Robert Pearlman:
Thus, the DAC could have very well been listed on Slayton's list but as no one but the astronauts ever had access to it, only Mitchell, his fellow crewmates or Slayton could say for sure.

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It is up to the U.S. government, the bringer of the suit, to prove "beyond reasonable doubt" that they still own the DAC?

Were the EVA gloves gifted to the astronauts formally? I remember seeing Alan Bean's in his studio, and he uses a lunar overshoe to print on his art. Seems like a very grey line between official and non official souvenirs.

posted 07-04-2011 10:03 AM               

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Originally posted by spacefan JC:
It is up to the U.S. government, the bringer of the suit, to prove "beyond reasonable doubt" that they still own the DAC?

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posted 07-04-2011 10:07 AM               

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Originally posted by spacefan JC:
Were the EVA gloves gifted to the astronauts formally? I remember seeing Alan Bean's in his studio, and he uses a lunar overshoe to print on his art.

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posted 07-04-2011 10:09 AM               

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Originally posted by Robert Pearlman:
Unless I missed a comment from Mitchell, we actually don't know that the DAC's return wasn't planned.

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posted 07-04-2011 10:14 AM               

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Originally posted by SRB:
Are they available, not released as private information (like the contents of PPK's) or lost over time?

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posted 07-04-2011 05:02 PM               

Someone retaining old currency that was destined for shredding (or otherwise destruction) is a situation where the destruction is a necessity because not destroying the old currency would have harmful consequences, i.e., the old currency that was to be replaced with new would halve the proper value of the new currency were it to be recirculated together with the new. But there are no analogous negative consequences by Mitchell retaining the DAC, since its destruction was not required for any end purpose. Mitchell may have mentioned that the DAC was headed for destruction anyway, but it's my understanding that was not what he was (solely) claiming as rendering possession.

As for the 1967 Outer Space Treaty (67-ST), it was (and is) first and foremost a treaty outlining principles as they pertain to the militarization and appropriation of places and [real (i.e. real estate)] property in outer space. There is absolutely nothing in the treaty that forbids the de-acquisitioning of property once it is no longer in space - - in fact the word abandonment never even appears in the document.

And the treaty does not talk about States retaining absolute dominion and perpetual ownership of any and all objects they have allowed, carried or launched into space, as you inferred. The actual [applicable) verbiage is as follows (from Article VIII of the Treaty): "Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return".

The purpose of this passage, in its proper context of the treaty, is to clarify that any property rights over an object that were in effect by the State sending or enabling the sending of it (the object) into space shall be retained and be unaffected by virtue of that object having been in space or to another celestial body. So if NASA owned the DAC before it was sent into space, nothing about their sending it into space affects their claims of property rights or ownership of that object, i.e. nothing about sending it into space "internationalizes" it or gives another party dominion over it that didn't have dominion over it before. It does NOT mean that NASA immediately becomes the permanent or perpetual owner and overseer of any object it sends or enables to be sent into space. This can be gleaned from Article XIII's previous sentence, stating: "A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body" [emphasis mine].

In other words, and for example, if NASA agreed to ferry WHAM-O's new titanium frisbee into space, the U.S. would retain all control and jurisdiction over that frisbee, and be responsible for any thing that might happen to it or any damage it might cause while it's in space or returning from space. Now let's say upon re-entry there was a problem and instead of the frisbee splashing down in the Pacific, it ends up in a Bolivian forest. The second sentence of Article VIII makes clear that WHAM-O retains full ownership rights over the frisbee, since it was the rightful owner of it before it was sent into space, and Bolivia doesn't become the owner of it just because it landed in Bolivian territory. The Treaty further obligates Bolivia (if it's a signatory to the Treaty) to return the frisbee to the United States (the State that launched it), and the U.S. is then obligated to return it to WHAM-O. In this scenario the U.S. does not become the permanent and perpetual owner of the frisbee.

In the case of the DAC, NASA was bound by the 67-ST to retain full jurisdiction and control over the camera while it was in space and being returned from space, and under Article VII of the Treaty would be fully responsible and liable if the camera had caused damage to any person or thing until it had returned to Earth. But there is nothing in the treaty that forbids NASA from ever deacquisitioning the camera, as you implied.

Further, if the 67-ST had the kind of effect you construe, even items and articles owned by others but flown by NASA, and/or items and articles which NASA had previously released to astronauts or others, could all be claimed by NASA as their sole and permanent property at any time. This was clearly never the intention of the treaty, and such claims would never stand in anything but a kangaroo court.

That Mitchell has been in possession of the camera for the last 40 years, that NASA has never claimed it was stolen during that time, or sought its return or listed it as missing from inventory in that entire time all inure, rightfully, to Mitchell's benefit.

As for some other comments since Robert's, Alan Bean's use of materials, by his own admission, were only on loan to him from the Smithsonian, so Bean could actually be sued for their return. Since the articles have been ground up and are unrecoverable in the form they were originally loaned, the Smithsonian could only sue Bean for conversion value of the materials, which could be a substantial sum. That Bean is being left alone and Mitchell is not makes one wonder why our government is specifically going after Mitchell (though I suspect it's simply a case of the government thinking it may be able to hoodwink a judge into deciding in its favor because Mitchell was trying to cash in on something he never created, as opposed to Alan Bean selling his own artistic endeavors).

Regarding spacefanJC's question, "Is it up to the U.S. government, the bringer of the suit, to prove "beyond reasonable doubt" that they still own the DAC?"- - There's no question that NASA once owned the DAC, so they can certainly assert some kind of claim (no matter how lame). So can Mitchell, obviously. If neither side can prove clear title conclusively (i.e., to the court's satisfaction) the law tends to side with the entity that has actual possession, in this case, Mitchell.

posted 07-04-2011 05:41 PM               

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Originally posted by chet:
Since the articles have been ground up and are unrecoverable in the form they were originally loaned, the Smithsonian could only sue Bean for conversion value of the materials, which could be a substanstial sum.

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posted 07-04-2011 08:15 PM               

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Originally posted by chet:
But there is nothing in the treaty that forbids NASA from ever deacquisitioning the camera, as you implied.

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But I think we're getting bogged down on extraneous points. The purpose of my raising the Outer Space Treaty (and earlier, the effort to transfer ownership of the hardware to the Smithsonian) was to emphasize that NASA never declared the hardware it left in space or on the moon as abandoned. And because the Outer Space Treaty was (and is) in effect, the U.S. deciding to leave items on the moon does not equate to their being abandoned.

So if Mitchell never asked for permission to retain the camera — which to be clear, he states he did — then he could not today simply claim he was salvaging abandoned property.

posted 07-05-2011 04:45 AM               

Robert's clarification that it is the US Government and not NASA prosecuting this case leads me to wonder what, if anything, Charlie Bolden is doing to help, maybe by clarify the historical records of those times searching for anything that may assist one of NASA's own, Ed Mitchell.

posted 07-05-2011 05:39 AM               

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Originally posted by leslie:
Robert's clarification that it is the US Government and not NASA prosecuting...

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posted 07-05-2011 12:57 PM               

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Originally posted by jimsz:
It's a 40 year old camera that no longer serves a purpose.

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posted 07-05-2011 04:17 PM               

But just a bit more legal hairsplitting, if I may; NASA could disown (i.e. abandon) property still in space, but still be liable/responsible for it, and therefore not be in violation of its obligations under the 67-ST. By letting go of the DAC, knowing it was being brought back to Earth by its astronauts anyway, possession of the DAC could still transfer to Mitchell.

posted 07-05-2011 04:43 PM               

So yes, we can agree that the government can deaccession items on the ground, in space and on celestial bodies.

posted 07-05-2011 06:20 PM               

If NASA changed the flight plan and in so doing did not legally abandon the camera, Mitchell did indeed need someone's permission to take possession of it.

So we disagree, Robert, only if you're claiming NASA COULD NOT HAVE abandoned it (since just the fact that it was returned to Earth does NOT by itself mean it still wasn't legally abandoned).

posted 07-05-2011 06:40 PM               

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Originally posted by chet:
The Apollo 14 DAC was scheduled for abandonment in the upper stage of the LM.

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Rather, I contend that the space agency continued its use of the ascent stage and all its contents to perform a scientific study by letting the stage fall back to the moon while the seismic station deployed by the Apollo 14 astronauts recorded the impact.

posted 07-05-2011 06:54 PM               

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Originally posted by chet:
The Apollo 14 DAC was scheduled for abandonment in the upper stage of the LM.

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Like I mentioned earlier, you're twisting the connotation. Just because the upper stage was discarded, that certainly does not mean it is classified as abandoned. For instance, as I said earlier, NASA is letting whatever debris from Challenger that hasn't been recovered sit at the bottom of the ocean. Yet if you were to go recover some of it, the government would have a huge problem with it (And I imagine no one here would contest that).

posted 07-05-2011 09:53 PM               

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Originally posted by SpaceAholic:
The same could be said for any other artifact on exhibit at the National Air and Space Museum or within our private collections (they all have a non-operational purpose).

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Nearly 40 years have past.

Many of these items are possessions many of the astronauts have spoken about owning for many years. In Lovell's book I believe he speaks of items he brought back. Irwin's book as well. Are they next? Maybe sue Irwin's widow since Jim can't defend himself.

The government bean counters and lawyers need to look into government waste, the 50% that pay no income taxes, etc. Not go after an elderly gentleman who acquired an item 40 years ago.

No, a suit like this demonstrates why NASA and the US government are in the condition they are. Broke, uninspiring and in NASA's case quickly becoming irrelevant. Wasting time and energy on stupid crusades when there are real problems that demand attention.

posted 07-05-2011 11:28 PM               

If I ferry oxygen bottles up the side of Mt. Everest for the purpose of using them in an expedition slated for the following year, but don't get back to them for five, I haven't abandoned those bottles, because that was not the intention. But if I use up all the air in one of those oxygen bottles and then toss it out onto the Rongbuk Glacier, then someone picks it up and wants to auction it, by law it is no longer my property. Yes, I could take someone to court claiming it was still mine, but such a case would likely be laughed out of the courtroom because my contention would be absurd on its face.

Such is the strength of NASA's claim on the DAC if it is arguing on the basis of non-abandonment of the article (not to mention other well recognized legal principles, such as usucapture, that would in all likelihood trump NASA's contentions in this case).

The analogy of Challenger remains made by Spaceguy5 is flawed, as NASA never intended for those remains to be where they are, and could still study them to add to the knowledge of what brought the craft down. But if NASA blew the ship up with the intention of destroying it and then divers recovered bits and pieces of it, no court (except a kangaroo one) would recognize NASA's claim to bits of debris as still valid (unless NASA was planning to recover those bits as part of an ongoing demolition experiment...but again, the concept of intentionality comes into play).

Also, look at the case of the raising of the Liberty Bell 7. NASA would've likely prevailed had it sued in 1999 to wrest control of the capsule from the KC Cosmosphere (provided compensation were paid for the capsule's recovery), because NASA never intended the capsule to sink to the sea bottom. But if NASA wanted to sue today for the capsule, they certainly would have the right to do that, but would in all likelihood lose because the capsule has been in the Cosmospheres possession all this time with NASA's knowledge and consent. Is anyone contending that NASA would be making good use of public funds by suing for the return of all the lucite encased components from that capsule scooped up by collectors over the years? But that's what NASA is essentially doing to Ed Mitchell in this case. Yes, they have the right, as do Rizz and Jimsz and others to point out what a farce it is.

posted 07-05-2011 11:44 PM               

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Originally posted by chet:
But if NASA wanted to sue today for the capsule, they certainly would have the right to do that, but would in all likelihood lose because the capsule has been in the Cosmosphere's possession all this time with NASA's knowledge and consent.

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