Science, and transportation united states senate

under the Bureau of Oceans and International Environmental and Sci-

entific Affairs in the Department of State. The Interagency Study

Group, which is responsible to the Bureau of Oceans and International

Environmental and Scientific Affairs, has as its function dealing with

the problems of international relations in weather modification ex-

perimentation by the United States. Thus far it has dealt solely with

the problems involved in the continuation of Project Stormfury, a

project concerned with tropical storm modification, at the request of

NOAA. In addition to negotiating with other countries, primarily

Mexico, concerning experimentation, the study group is examining the

potential problems of liability of the United States for damage done

by official U.S. weather modification activities.

56 National Advisory Committee on Oceans and Atmosphere. "A Report to the President

and the Congress," fifth annual report, June 30, 1976. Washington. U.S. Government

Printing Office, 1976. pp. 53-o4.

CHAPTER 11

LEGAL ASPECTS OF WEATHER MODIFICATION

(By Nancy Lee Jones, Legislative Attorney, and Daniel Hill Zafren, Assistant

Chief, American Law Division, Congressional Research Service)

Domestic*

The legal issues presented by weather modification are complex and

unsettled. These issues can be divided generally into four broad cate-

gories : Private rights in the clouds, liability for weather modification,

defenses which may be raised against such liability, and methods of

controlling weather modification. Before a discussion of these issues

is begun, it should be noted that the body of law concerning weather

modification is slight and existing case law offers few guidelines for

the determination of these issues. For this reason it is often necessary

to attempt to analogize the issues which arise concerning weather mod-

ification to other, more settled, areas of law such as the general law

of water distribution.

PRIVATE RIGHTS IN THE CLOUDS

Several different issues have been raised concerning private rights

in the clouds : First, are there any private rights in clouds or in the wa-

ter which may flow from them ; second, does a landowner have any par-

ticular rights in atmospheric water ; and third, does a Aveather modifier

have rights in atmospheric water. It has been argued that there are

no private rights in the clouds or their water since they are common

property which belongs to everyone who would benefit from them.

Analogies have been drawn to animals ferae naturae. As one commen-

tator has stated :

Clouds, and therefore the ability to modify weather, differ from most types of

property, either real or personal, in that there is no way in which they may be

captured or possessed. Man cannot force a cloud to stay over his property or keep

it from passing over his property. In this respect clouds have often been com-

pared to animals ferae naturae. Animals ferae naturae cannot be owned because

they cannot be possessed. Therefore since this common law element of ownership

cannot be met, they are the common property of all, not the individual property

of any one person. (Citations omitted.) 1

This theory of common ownership of the clouds and any water they

might contain has also found support in one of the few cases discussing

weather modification. In Pennsylvania Natural Weather Association v.

Blue Ridge Weather Modification Association, 44 Pa. D. & C. 2d 749

(1968) , the court stated :

We are of the opinion that clouds and the moisture in the clouds, like air

and sunshine, are part of space and are common property belonging to everyone

* Nancy Lee Jones, legislative attorney, American Law Division, Congressional Research

Service.

1 "Legal Aspects of Weather Modification in Texas," 25 Baylor L. Rev. 501, 502 (1973).

(449)

who will benefit from what occurs naturally in those clouds. There could be

just as. much injury or harm from weather modification activities as there could

be from air and water pollution activities. We hold specifically that every

landowner has a property right in the clouds and the water in them. No indi-

vidual has the right to determine for himself what his needs are and produce

these needs by artificial means to the prejudice and detriment of his neighbors. 2

Before the issues of the rights of the landowner and the weather

modifier in atmospheric water are discussed, it should be noted that

some State statutes specifically reserve the ownership or right to use

atmospheric w T ater to the State. 3

There have been a few cases which have discussed the rights of a

landowner in atmospheric water. As quoted above the Pennsylvania

court in Pennsylvania Natural Weather Association v. Blue Ridge

"Weather Modification Association did state that "* * * every land-

owner has a property right in the clouds and the water in them." Sim-

ilarly, in Southwest Weather Research., Inc. v. Duncan, 319 S.W. 2d.

910 ( 1958 ) , aff'd. sub. nom. Southwest Weailier Research, Inc. v. Jones,

327 S.W. 2d 417 (1959) , the Texas court stated :

We believe that the landowner is entitled, therefore and thereby, to such rain-

fall as may come from clouds over his own property that Nature, in her caprice,

may provide.

This theory enunciated in Southwest Weather Research, Inc. v.

Duncan is similar to the common law doctrine of natural rights which

is basically a protection of the landowner's right to use his land in

its natural condition. One commentator has stated that "All forms of

natural precipitation should be elements of the natural condition of

the land. Precipitation, like air, oxygen, sunlight, and the soil itself,

is an essential to many reasonable uses of the land * * *." 4

However, in Slutsky v. New York, 97 N.Y.S. 2d 238 (1950), a New

York court held that resort owners who were attempting to enjoin

weather modification experiments "* * * clearly (had) no vested

property rights in the clouds or the moisture therein." The weather

modification experiments in this case were undertaken in an attempt

to supply the city of New York with an adequate supply of water in

the face of a drought and the court also stated that it must balance

the competing interests involved.

All three of these cases have limited value in resolving the issue of

a landowner's rights in atmospheric water since they involved only

the narrow issue of the right of a landowner to have a temporary in-

junction against cloud seeding. Also both the Pennsylvania and New

York decisions rested on the issue of causation; they both determined

that the landowner was not entitled to relief since he had not proved

that weather modification would interfere with the weather.

In the absence of a statutory determination of the ownership of

atmospheric water and in the lack of a well developed body of case

law, analogies may be drawn to some general common law doctrines.

The doctrine of "natural rights" has already been noted above; in

addition to this doctrine, the "ad coelum" doctrine may also be in-

structive. This concept has been attributed to Accursius of Bologna

2 Pennsylvania Natural Weather Association v. Blue Ridge Weather Modification 4.«so-

Ciation, 44 D. Jfc C. 2d 749. 7f>9 TOO (1968).

"Colo. Rev. Stat. s<>c. 30-20-10.°,: La. Rev. Stat. Ann. 37 sec. 2201; Neb. Rev Stat. sec.

2-2401 : N. Meat. Stat. Ann. sec. 75-37-3 ; N. Dak. Cent. Code sec. 2-07-01 ; and Wyo. Stat.

sec. 9-207.

* "Who Owns the Clouds?" 1 Stan. L Rev. 43 (1948).

451

who stated "Cujus est solum ejus debet esse usque ad coelum." This

sessed of all the space upward to an indefinite extent. 5 Blackstone ac-

cepted tliis doctrine and stated :

Land hath also, in its legal signification, an indefinite extent, upwards as

well as downwards. Cujus est solum, ejus est usque ad coelum (whoever has

the land possesses all the space upwards to an indefinite extent), is the maxim

of the law; upwards, therefore, no man may erect any building, or the like to

overhang another's land : ... So that the word "land" includes not only the face

of the earth, but every thing under it, or over it.®

The coming of the airplane required some modification of this doc-

trine, since if a landowner owned the space above his land to an

infinite extent, airplanes would have been unable to fly over land with-

out committing a trespass. In United States v. Oausby, 328 U.S. 256

(1945), the Supreme Court rejected the "ad coelum" doctrine and

stated that "The air is a public highway ..." 7 The Supreme Court also

stated how much of the space above his property the landowner owns :

The landowner owns at least as much of the space above the ground as he

can occupy or use in connection with the land . . . The fact that he does not oc-

cupy it in a physical sense — by the erection of buildings and the like — is not

material. 8

It could be argued from this language that since a landowner can

use the space above the ground for weather modification he also owns

it.

Other analogies may be drawn to the doctrines of riparian rights

appurtenant to land abutting a watercourse, granting the landowner

the right to reasonable use of the water, subject to similar correlative

rights held by owners of other lands abutting the watercourse," 9 This

analog}' is also not a close one since atmosphere does not flow in water-

courses. It has been stated that . . the analogy is farfetched, if not

false. . . ." 10 An analogy with the doctrine of appropriation ma}' be

considered more appropriate since it gives a priority of right based

upon actual use; however, like riparian rights, appropriation rights in

water are limited to water naturally flowing in the watercourses.

This doctrine of appropriation would probably be of greater help

in arguing that the weather modifier has certain rights in atmospheric

water. 11 The appropriation doctrine recognizes legal interests based

on development and use of water, not on land ownership. It has been

stated that :

The appropriation of water consists in the taking or diversion of it from some

natural stream or other source of water supply, in accordance with law, with the

5 R. Wright. "The Law of Airspace" 13-14 (Indianapolis 1968). It has heen stated that

Aceursius had in mind the rights of the owners of burial plots to have such land free from

overhanging buildings. D. Halacy. Jr. "The Weather Changers*' 205 (New York. 1968).

6 2 Blackstone, "Commentaries on the Laws of England" ch. 2. at 19 (p. 445 in Cooley

ed. 1899) cited in R. Wright, "The Law of Airspace" 12-13 (Indianapolis, 1969).

7 United States v. Causby, 328 U.S. 256, 260 (1945).

* 8 Id. 264. For a detailed discussion of this case and aviation and airspace ownership

generally see R. Wright, "The Law of Airspace" 101-209 (Indianapolis, 1968).

8 4 "Waters and Water Rights" 471 (R. Clark, ed. 1970).

10 The Weather Modification Law Project Staff, University of Arizona, School of Law.

"The Legal Implications of Atmospheric Water Resources Development and Management"

17( 1968).

11 It should be noted that the doctrine of appropriation is based on State statutory or

constitutional provisions. These provisions must be examined carefully in determining

rights in a specific State.

452

intent to apply it to some beneficial use or purpose, and consummated, within a

nated.^

to weather modification would offer several advantages : This doctrine

is being adopted by increasing numbers of States and is supported by

a large body of statutory and case law ; the administrative procedures

of these statutes could be extended to cover the water obtained from

weather modification; and the use of this doctrine would offer a unified

approach to water law. 13 Disadvantages have also been noted with

respect to the extension of the doctine : in most States which subscribe

to the doctrine of appropriation, the first weather modifier to comply

with the appropriation requirements could take all the moisture, and

others would have no legal rights to natural rainfall ; the measurement

of the rain falling on the land of a rain appropriator would be difficult ;

other raiiimaking in an area around the appropriator's land would

have to be prohibited if his rights were to be protected and the ques-

tions of proof if the first appropriator claimed he did not get his share

would be veiy difficult. 14

Comparisons have also been made between oil and gas law and

weather modification. This analogy is based upon, the early theory that

oil and gas, like water, were fugitive and migratory substances. This

early theory evolved into two main doctrines of ownership in oil and

gas: the "nonownership theory" and the u ownership-in-place theory":

The essence of the "nonownership theory" is that no person owns oil and gas

until it is produced and any person may capture the oil and gas if able to do so.

An interest in land is a prerequisite to the attempt to reduce the oil to possession.

In "ownership-in-place" States, the nature of the interest of the landowner in

oil and gas contained in his land is the same as his interest in solid minerals.

[Citations omitted.] 16

Applying either of these two theories to weather modification would

appear to be of little help in establishing rights of a weather modifier

to atmospheric water since both involve ownership interests in land.

It should be noted that the physical differences between oil and gas

and atmospheric water may render the analogy inapplicable. 16

Analogies to the concepts of "developed water" and "imported

water" may prove to be more appropriate. Developed waters are

waters that "would not but for man's improvements, have become part

of a stream, or waters that would otherwise have been lost by seepage

or evaporation. As a general rule these waters are subject to appro-

priation by the parties developing or saving them." 17 One of the

factors used in determining whether water is developed water is

whether the water was added to the natural flow by the energy and

expenditure of the claimant from a source which previously had no

outlet. 18 The main difficulty faced in applying this concept to weather

12 2 Kinney, "Irrigation and Water Rights" (2d ed.) 1216 cited in W. Fischer, "Weather

Mortification and the Right of Capture," 8 Natural Res. Lawyer 639, 642 (1976).

" 4 "W&ters and Water Rights" 474, (R. Clark, ed., 1970).

14 Ibid. 473-474.

lsrpbe Weather Modificntion Law Troioot Staff, University of Arizona, School of Law,

"The Loeral Implications of Atmospheric Water Resources Development and Management.")

22 (1968).

16 R. Davis. "State Regulation of Weather Modification." 12 Arizona L. Rev. 35 (1970).

w 1 "Waters and Water Rights" 341-342 (R. Clark, ed. 1970).

" The Weather Modification Law Project Staff, University of Arizona, School of Law.

"The Legal Implications of Atmospheric Water Resources Development and Management,'

23 (1968).

453

modifiers is establishing that the modifier actually developed the

Imported water, which is sometimes referred to as foreign water,,

is "water that has been imported by a user from one watershed into

another.*' 20 Imported water, like developed water, is not part of the

natural flow of water. Persons who import water are generally given

a prior right to the capture and use of such waters. 21 It has been stated

that the application of the doctrine of imported water to weather

modifiers would be advantageous since imported water is frequently

exempted from the control of interstate river compacts. 22 Problems

would also be presented by this analogy. The weather modifier must

show that the water he has produced has been shifted from one water-

shed to another, and he must also show that the water is imported

rather than contributory. In addition, the general question of proof,

that is establishing that the modifier actually produced the water,

would present difficulties.

LIABILITY FOR W T EATHER MODIFICATION

If a drought or a severe storm occurs after weather modification at-

tempts have occurred, issues concerning liability for damages may

arise. These issues would include causation as well as the application

of a number of theories of tort recovery including nuisance, strict lia-

bility, trespass, and negligence. Other bases of liability might be pres-

ent depending on the particular facts and circumstances attending any

specific incident. In addition, issues concerning air and water pollu-

tion could be raised. Before a general discussion of these issues is be-

gun, it would be helpful to examine briefly State statutes which dis-

cuss liability.

Ten State statutes were found which discuss liability for weather

modification. These statutes vary widely in effect and complexity.

Eight of these statutes specifically provide that the State is immune

from liability. 23 Five statutes were found which provide that obtain-

ing a license for weather modification is not a defense to legal actions. 24

The statutes on weather modification are stated not to affect private

contractual or legal obligations in four States. 25 Three statutes pro-

vide that weather modification is not ultrahazardous 26 while three

State statutes provide that weather modification is not a trespass 27

or, in one State, not a public or a private nuisance. 28 In addition, Colo-

19 For a detailed discussion of this question of proof, see W. Fischer, "Weather Modifica-

tion and the Right of Capture," 8 Natural Res. Lawyer 639, 645-651 (1976).

20 1 "Waters and Water Rights," 339 (R. Clark, ed. 1970).

21 Id.

"The Legal Implications of Atmospheric Water Resources Development and Management,"

29 (1968).

23 Colo. Rev. Stat. sec. 36-20-122 ; 111. Ann. Stat. ch. 14 3/4, sec. 27 ; Kan. Stat. sec.

82a-1420 ; N. Dak. Cent. Code sec. 2-07-10 ; Okla. Stat. Ann. Title 2 sec. 1418 ; Tex. Water

Code Ann. title 2 sec. 14.101 ; Wash. Rev. Code sec. 43.37.190 and Wyo. Stat. Ann. sec. 9-276.

24 Col. Rev. Stat. sec. 36-20-123; 111. Ann. Stat. ch. 14 3/4, sec. 27; Kan. Stat. sec.

82a-1420; N. Dak. Cent. Code sec. 2-07-10; Tex. Water Code Ann. title 2 sec. 14.101.

25 Okla. Stat. Ann. title 2 sec. 1418; Tex. Water Code Ann. title 2 sec. 14.101 (with

certain exceptions) ; Wash. Rev. Code Ann. sec. 43.37.190 ; Wis. Stat. Ann. sec. 19^.40.

26 111. Ann. Stat. ch. 14 3/4, sec. 27 ; N. Dak. Cent. Code sec. 2-07-10 ; Tex. Water Code

title 2 sec. 14.101.

27 111. Ann. Stat. ch. 14 3/4, sec. 27 ; N. Dak. Cent. Code sec. 2-07-10 ; Colo. Rev. Stat. sec.

36-20-123.

28 Colo. Rev. Stat. sec. 36-20-123.

454

a permit for weather modification constitutes negligence 29 per se

while Wisconsin provides that unregulated weather modification

operations shall be subject to summary abatement public nuisances. 30

Illinois and Xorth Dakota also provide that a person adversely

affected by weather modification shall not be prevented by a statute

on weather modification from recovering damages resulting from in-

tentional harmful actions or negligent conduct. 31 Finally, West Vir-

ginia provides that any licensee who causes a drought or a heavy

downpour or storm which causes damage to land as determined by the

West Virginia Aeronautics Commission shall compensate farmers and

property owners for such damage. 32

Before any case for liability for weather modification can be made,

it must first be proved that the weather modifier did in fact cause

the drought, storm, or heavy rainfall which led to the damage for

which compensation is sought. 33 Due to scientific uncertainties, this

is a very heavy burden of proof for the plaintiff and is not often met.

State statutes on weather modification provide few guidelines con-

cerning causation. Of the 10 State statutes which discuss liability for

weather modification, only the West Virginia statute discusses causa-

tion and there the statute simply recites that whether or not a weather

modifier causes a drought or a storm shall be determined by the West

Virginia Aeronautics Commission.

The test which is used most often in tort law to determine whether

a causal relationship exists is the u but for' test. This test states that

an activity is the cause in fact of a claimed consequence where the

event would not have occurred but for the conduct of the actor. 34

This test has been used in some weather modification cases 35 but

"judicial experience to date has shown that proof of cause in fact is

a serious obstacle to recovery of damages from a weather modifier

and to securing injunctive relief to bar his continued operations.'' 36

Several different theories of tort liability may be argued in a

weather modification case; strict liability, nuisance, negligence, and

trespass. As noted above, some State statutes specifically allow or pro-

hibit some of these types of suits. Illinois, North Dakota, and Texas

all provide that weather modification is not ultrahazardous which in

effect bars the use of the theory of strict liability. Strict liability re-

sults when an activity is found to be ultrahazardous, which has been

defined as •"necessarily involving ... a risk of serious harm to the

person, land, or chattels of others which cannot be eliminated by the

29 Colo. Rev. Stat. sec. 36-20-123 ; 111. Ann. Stat. ch. 14 3/4, sec. 27.

30 Wis. Stat. Ann. sec. 195.40.

sl 111. Ami. Stat. ch. 14 3/4. sec. 27 ; N. Dak. Cent. Code sec. 2-07-10.