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.
Update: See also Roderick T. Long In Defense of Public Space (1996): Grok summary:
Yes, Roderick Long’s arguments in “In Defense of Public Space” (1996) are largely compatible with Hans-Hermann Hoppe’s treatment of common goods, easements/rights-of-way, group co-ownership, and total privatization in chapter 5 of The Great Fiction (“Of Common, Public, and Private Property and the Rationale for Total Privatization”). Both thinkers operate in the Rothbardian libertarian tradition: they reject state-owned “public property” as a source of conflict and institutionalized expropriation, while recognizing that certain non-state collective arrangements or access rights can arise legitimately from use, labor, or voluntary transfer without creating irresolvable conflict.
Summary of Long’s Article
Long defends the legitimacy and utility of non-state “public space” (physical and decision-space) in a libertarian society. He distinguishes it sharply from government-owned “public property” (which he calls the private property of a coercive agency calling itself the government).
Core thesis: A free society does not require (and would suffer from) the complete privatization or hyper-regulation of all space. Public space—where rights inhere in the “unorganized public” rather than the state or a single private owner—can emerge spontaneously and function as a beneficial framework linking private properties. It allows trade-offs between freedom and security/order while avoiding the “tragedy of the commons” in many cases through social norms, custom, or mixed regimes. Long draws on ideas like Carol Rose’s “comedy of the commons” (where increased use of certain non-rivalrous or synergistic resources increases value, e.g., markets, ideas, festivals, or lively public areas) and spontaneous order.
Key examples and mechanisms:
- Village path cleared by repeated collective use: This is not unowned or state property but the product of joint labor by the villagers. The cleared path creates a collective property right. A single villager cannot unilaterally gate it and charge tolls without violating the group’s earned right.
- Donated roads (historical example from 19th-century England): Private parties build and then voluntarily transfer access rights to the unorganized public to increase adjacent land values and business. This creates perpetual public easements/access rights without state involvement.
- Markets, ideas, and movements as “public decision-space”: These benefit from open access (comedy of the commons). Restricting them (e.g., via protectionism or IP) is anti-libertarian.
- Management without the state: Spontaneous norms, custom-policed commons (historical grazing lands), competition between more-open “public” roads and rule-bound private roads, and mixed bundles of rights. Users self-select (e.g., “take the public road if you want more freedom; take the private one for more security”).
Long critiques overly restrictive “private-law” visions (e.g., Rich Hammer’s) that could lead to oppressive micro-regulation and defends public space as enabling freedom, preventing private monopolies over access, and even helping defend private property (e.g., by providing routes to eject trespassers). Public and private spaces are allies, not enemies: many private spaces linked by a framework of public ones.
Hoppe’s Position in the Chapter
Hoppe’s chapter clarifies private property as the conflict-avoiding norm (exclusive control acquired by original appropriation or voluntary transfer, grounded in the a priori of argumentation and scarcity). He distinguishes:
- Common goods/property (“unowned” environmental features everyone uses, e.g., a village street or path through the woods with no private claimant). These can function without conflict in a stationary economy but generate problems (congestion, disrepair) with growth/population increase. They must be “economized” into goods via privatization.
- “Public” property (modern state-owned/controlled streets, parks, etc.): This is not the same as unowned commons. It arises from expropriation/taxation of private property, creates compulsory ownership without exit, institutionalizes conflict via taxes/fees, enables forced integration, and allows the state to interfere with adjacent private property. It is dysfunctional for conflict avoidance and must be abolished via total privatization.
Privatization of formerly common streets/paths (Hoppe’s key practical discussion): This can occur without conflict only if pre-existing easements/rights-of-way of residents are preserved—“Everyone must remain free to walk the street from house to house… Everyone retains a right-of-way.” The appropriator establishes a claim via visible maintenance/repair work. The owner can then set rules, charge strangers, exclude uninvited parties, build on it, or sell it (easements intact).
Crucially, Hoppe explicitly allows initial group/co-ownership as one valid form of privatization: “On the other end of the spectrum, we can imagine that the initial maintenance or repair of the street is the result of a genuine community effort. In that case, there is not just one owner of the street, but every community member is (initially) its equal co-owner.” Co-owners can decide by majority (like a joint-stock company), but dissatisfied members retain an “exit” option by selling their share. This can lead to concentration of ownership. He stresses that some privatization is more important than the exact form.
For real-world “public” goods (streets first, then schools, etc.): Award tradable titles to net taxpayers proportional to taxes paid (restitution principle), while preserving rights-of-way/easements for streets. Other public goods have no such easements. Wilderness/unoccupied public property opens to original appropriation. The goal is conflict avoidance through clear, marketable private (or initially co-owned, exit-capable) property.
Hoppe repeatedly emphasizes easements/rights-of-way as pre-existing claims that privatization must respect, exactly as in donated or collectively used paths/roads.
Compatibility Assessment
Yes, they are compatible on core points, especially regarding non-state collective or easement-based arrangements:
- Long’s village path (collective labor → group right, cannot be unilaterally tolled) closely parallels Hoppe’s community-effort co-ownership of a street/path or his preservation of residents’ rights-of-way/easements upon privatization. Both treat repeated use/labor as generating legitimate non-individual claims without state involvement.
- Long’s donated roads creating perpetual public access match Hoppe’s insistence that privatization of common streets must leave everyone’s prior free use intact via easements/rights-of-way.
- Both reject state “public property” as coercive and conflict-generating. Long’s “unorganized public” property is distinct from government ownership, aligning with Hoppe’s commons vs. public distinction.
- Hoppe’s allowance for initial group co-ownership (with marketable shares and exit) provides a bridge to Long’s ongoing public-space framework. Hoppe is more insistent on eventual marketability and clear ownership to minimize long-term conflict, while Long highlights benefits of open/public elements (comedy of the commons for synergistic uses) and spontaneous/customary management.
Nuances/differences: Hoppe’s framework is more systematically privatization-oriented and cautions against arrangements without clear exit or that institutionalize conflict. Long is more enthusiastic about ongoing public space as freedom-enhancing and a counter to overly restrictive private regimes. They do not contradict; Hoppe’s easements and community co-ownership leave room for Long-style public access rights arising from use, labor, or gift.
The linked Kinsella articles fit this discussion:
- The Robin Hood/Magna Carta/Forest Charter piece illustrates historical recognition of commoners’ rights/easements in royal forests (grazing, wood, etc.) against monarchical overreach—classic examples of non-state, use-based or customary collective access rights that predate or limit “public” (royal/state) claims, very much in the vein of Hoppe’s easements and Long’s collective paths.
- The polygamist sect fencing off 1,000 acres example likely concerns a private/group assertion of control/exclusion over land (possibly via homesteading, purchase, or adverse possession), highlighting practical private or communal boundary-setting versus open/public claims.
These reinforce the tradition both Hoppe and Long draw from: property rights (including certain group or easement rights) arise from action, use, agreement, or labor—not state declaration—and can include legitimate non-fully-private arrangements short of state monopoly “public property.”
In short, Long’s defense of non-state public space via collective homesteading, donation, and easements is consistent with Hoppe’s analysis. Both support total privatization of state public property while preserving or allowing legitimate non-state access rights and group arrangements that avoid conflict. This aligns with broader libertarian property theory (Rothbard-Hoppe-Kinsella lineage) emphasizing original appropriation, title transfer, and conflict avoidance over state or unowned commons.
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.”
For more on the Roman Law doctrine of occupatio, see Gaius, Institutes of Roman Law, with a translation and commentary by Edward Poste, 4th ed., revised and enlarged by E.A. Whittuck (Oxford: 1904), 2.66 (p. 165) (“Occupation gives property in a thing which previously has no owner.”); and J.A.C. Thomas, ed., The Institutes of Justinian: Text, Translation, and Commentary, J.A.C. Thomas, trans. (Amsterdam: North-Holland Publishing Company, 1975): 2.1.12; also Justinian, The Digest of Justinian, Alan Watson, trans. (Philadelphia: University of Pennsylvania Press, 1985): 41.1.3 (Gaius).
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. 15, Part IV.C, and n.51; ch. 9, Part III.A. See also 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. [↩]
