DENVER — A conflict brewing in southwestern Colorado pits ranchers and outdoors enthusiasts against survivors of former polygamist leader Warren Jeffs after the latter group declared itself the Free Land Holders Committee and began fencing off about 1,000 acres of public U.S. Forest Service land.
Angry residents — some of them carrying sidearms — started cutting down portions of the fence around 1 p.m. Thursday on land outside the town of Mancos in the San Juan National Forest. Montezuma County Sheriff Steve Nowlin had implored people to stand down to allow the dispute to be negotiated between federal agencies and the Free Land Holders.
The Free Land Holders Committee began building the fences on Saturday, alarming ranchers who use the federal land for cattle grazing and those who ride mountain bikes, hike and cross-country ski in area known locally as Chicken Creek. They fear the group will cut off access to public lands.
“They couldn’t have picked a piece of ground that was more beloved by the town than that area,” said Brad Finch, a retired teacher and firefighter who lives outside Mancos and uses the national forest almost daily to hike, bike or ski.
But the sheriff insists access has not been cut off, even though barbed-wire fencing now crisscrosses forest service property.
“There’s no public access being denied,” Nowlin said. “I’m just trying to head off all these people that have got themselves all wound up with false information.”
Nowlin spent hours Wednesday trying to negotiate a settlement between the U.S. Forest Service and the land holders group, and issued a news release late in the day imploring residents to “refrain from gathering in the area and/or attempting to remove fencing.” The Forest Service and sheriff’s office also met Wednesday night with local leaders.
But on Thursday afternoon, about 16 people arrived to cut down the fence with hand tools. Sheriff’s deputies stood nearby to try to keep the peace.
Members of a local Facebook group had posted they were still planning to tear down fences, and The Denver Post spoke with two people who said the planned tear-down was still happening.
Gene Epstein and I were discussing this the other day and I observed that it could be argued that this violates the easement rights of the ranchers/hunters, like the enclosure laws that left-libertarians have opposed (“property is theft”). I pointed out that even in Hoppe’s theory you can have group easement rights that are violated by enclosure/fencing. Here is the email I sent him:
Re our brief discussion—
Hoppe on group easements: “Of Private, Common, and Public Property and the Rationale for Total Privatization” — see in particular Part II.
Re the Forest charter, enclosures, and so on — Robin Hood, Magna Carta, and the Forest Charter. And how the enclosure movement could be seen as a type of theft of preexisting easements–a la Hoppe’s comments too.
Epstein’s argument as for why Roman “occupatio” is superior as the key to homesteading as opposed to Locke’s labor mixing. Hoppe also seems to lean to this with his emphasis on embordering as establishing an objective, “intersubjectively
See Richard Epstein on the Roman Law here:
and this playlist of short lectures on Roman Law he did for the Federalist Society:
As Richard notes in these lectures he is a huge fan of the common law but also of the Roman law. In these lectures he makes a point I had never thought much about before, about how the Roman idea of occupatio—acquisition of title to an unowned thing (like land) by simply occupying it is superior to the Lockean idea of labor-mixing. I never thought they were fundamentally that different, though it is curious that Hoppe in his “homesteading” theory seems to focus more on embordering and/or transfor
It is also not incompatible with standard “Lockean” style libertarian reasoning. As noted, Hoppe focuses on embordering, occupying, using, possessing, transforming. So does Rothbard. See “Justice and Property Rights,” in Economic Controversies, p. 352:
“We conclude that utilitarianism cannot be supported as a groundwork for property rights or, a fortiori, for the free-market economy. A theory of justice must be arrived at which goes beyond government allocations of property titles and which can therefore serve as a basis for criticizing such allocations. Obviously, in this space I can only outline what I consider to be the correct theory of justice in property rights. This theory has two fundamental premises: (a) the absolute property right of each individual in his own person, his own body: this may be called the right of self-ownership; and (b) the absolute right in material property of the person who first finds an unused material resource and then in some way occupies or transforms that resource by the use of his personal energy. This might be called the homestead principle—the case in which someone, in the phrase of John Locke, has “mixed his labor” with an unused resource.”
See also my post Aggression and Property Rights Plank in the Libertarian Party Platform:
2.1 [Aggression,] Property and Contract
[Aggression is the use, trespass against, or invasion of the borders of another person’s owned resource (property) without the owner’s consent; or the threat thereof. We oppose all acts of aggression as illegitimate and unjust, whether committed by private actors or the state.]
[Each person is the presumptive owner of his or her own body (self-ownership), which right may be forfeited only as a consequence of committing an act of aggression. Property rights in external, scarce resources are determined in accordance with the principles of original appropriation or homesteading (whereby a person becomes an owner of an unowned resource by first use and transformation), contract (whereby the owner consensually transfers ownership to another person), and rectification (whereby an owner’s property rights in certain resources are transferred to a victim of the owner’s tort, trespass, or aggression to compensate the victim). 1
See also my comments and links here: The Superiority of the Roman Law: Scarcity, Property, Locke and Libertarianism.
Hoppe on objective links, embordering: A Theory of Socialism and Capitalism, ch.2
“What is the underlying rationale of this natural position regarding property? At the bottom of the natural property theory lies the idea of basing the assignment of an exclusive ownership right on the existence of an objective, intersubjectively ascertainable link between owner and the property owned and, mutatis mutandis, of calling all property claims that can only invoke purely subjective evidence in their favor aggressive. While I can cite in favor of my property claim regarding my body the objective fact that I was the body’s first occupant — its first user — anyone else who claims to have the right to control this body can cite nothing of the sort. No one could call my body a product of his will, as I could claim it to be the product of mine; such a claim to the right to determine the use of the scarce resource “my body” would be a claim of nonusers, of nonproducers, and would be based exclusively on subjective opinion, i.e., on a merely verbal declaration that things should be this or that way. Of course, such verbal claims could (and very likely always will) point to certain facts, too (“I am bigger, I am smarter, I am poorer or I am very special, etc.!”), and could thereby try to legitimize themselves. But facts such as these do not (and cannot) establish any objective link between a given scarce resource and any particular person(s). Everyone’s ownership of every particular resource can equally well be established or excluded on such grounds. It is such property claims, derived from thin air, with purely verbal links between owners and things owned, which, according to the natural theory of “property, are called aggressive. As compared with this, my property claim regarding my body can point to a determinate natural link; and it can do so because my body has been produced, and everything produced (as contrasted with things “given”), logically, has a determinate connection with some definite individual producer(s); it has been produced by me. To avoid any misunderstanding, “to produce” is not to say “to create out of nothing” (after all, my body is also a naturally given thing); it means to change a naturally given thing according to a plan, to transform nature. It is also not to say “to transform each and every part of it” (after all, my body has lots of parts with respect to which I never did anything!); it means instead to transform a thing within (including/excluding) borders, or, even more precisely, to produce borderlines for things. And finally, “to produce” also is not to say that the process of production must go on indefinitely (after all, I am sleeping sometimes, and my body is certainly not a product of my actions right then), it simply means that “it was produced in the past and can be recognized as such. It is such property claims, then, which can be derived from past, embordering productive efforts and which can be tied to specific individuals as producers, which recalled “natural” or “nonaggressive.”
I also touch on this here and there in Legal Foundations of a Free Society, e.g. ch. 2, the section “PROPERTY IN EXTERNAL THINGS”, and see n.35; ch. 14, Part II.D; “Defending Argumentation Ethics” (ch. 7), the section “Objective Links: First Use, Verbal Claims, and the Prior-Later Distinction.” Ch. 23, text at n. 45, and so on.
- For elaboration of the basis for the property acquisition rules specified in the second sentence of the second paragraph, see Against Intellectual Property After Twenty Years: Looking Back and Looking Forward, n. [42] and accompanying text, including references such as: Kinsella, “How To Think About Property,” StephanKinsella.com (April 25, 2021); Kinsella, “The Limits of Libertarianism?: A Dissenting View” (citing Roderick Long and Robert Nozick); also idem, “KOL345 | Kinsella’s Libertarian “Constitution” or: State Constitutions vs. the Libertarian Private Law Code (PorcFest 2021),” Kinsella on Liberty Podcast (June 26, 2021); and “Nobody Owns Bitcoin,” StephanKinsella.com (April 21, 2021). See also Gary Chartier, Anarchy and Legal Order: Law and Politics for a Stateless Society (Cambridge, 2012), at 64–65, et seq., elaborating on the “baseline possessory rules” corresponding to original appropriation and contractual title transfer. [↩]
