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Mutualist Blog: Free Market Anti-Capitalism

To dissolve, submerge, and cause to disappear the political or governmental system in the economic system by reducing, simplifying, decentralizing and suppressing, one after another, all the wheels of this great machine, which is called the Government or the State. --Proudhon, General Idea of the Revolution

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Location: Northwest Arkansas, United States

Thursday, June 22, 2006

Free-for-All on South Central Farmers

The South Central Farmers have created quite a tempest in the libertarian blogosphere. Before I get into the meat of my post, be forewarned that this is a long one, and I spend a long part of this post surveying the extended arguments at several blogs. So my own assessments are way, way, way down there near the bottom.

Rad Geek links to an L.A. Times story on the disputed urban farm:

The site has a contentious history. The city acquired the land from Horowitz through eminent domain in the 1980s for a planned trash incinerator, but the project was stopped by neighborhood opposition.

After the 1992 riots, the city leased the land to the Los Angeles Regional Food Bank, which began the community garden. In 2003, the city sold the land back to Horowitz for about $5 million.

But the farmers did not leave. In the last three years, and particularly in recent weeks, the farmers have pleaded to stay despite Horowitz's plans to sell the land for development.

A nonprofit group tried to buy the land and preserve the farm. But it announced last month that their fundraising effort was $10 million short of Horowitz's $16.3-million asking price.

Some in the community support him, arguing that the area would benefit from the jobs that would come if the land were developed.

But according to Rad Geek, the LAT story neglects some important aspects of the story. He links to another, earlier account in The New Standard:

In 1985–86, the land was taken via eminent domain from private owners by the Los Angeles Department of Public Works for development of a trash-to-energy incinerator called the Los Angeles City Energy Recovery (Lancer) Project. The largest of the private owners was the Alameda-Barbara Investment Company, which owned approximately 80 percent of the land taken for the Lancer project.

The people living near the proposed incinerator site – most of them African American – mobilized against Lancer. At the center of the environmental-justice struggle was the newly formed community-based nonprofit organization Concerned Citizens of South Central L.A., which demanded public hearings and a health-risk assessment of the Lancer project, both of which were granted by the city. In 1987, the City Council and mayor agreed to terminate the incinerator project.

The city retained ownership of the Lancer site. In June 1994, after canceling a plan to sell it to a public-housing corporation for the creation of 316 affordable town homes, the city sold the land to the L.A. Harbor Department for $13.3 million.

In court filings, Ralph Horowitz, a partner in former property owner Alameda-Barbara, claims to have engaged in talks with the city to regain the land title at about this time. Central to his argument is a claim that the city had attempted to sell the land in violation of his right to repurchase the land should the city sell it for non-public or non-housing purposes within ten years of the condemnation. (This right was established in the 1991 final order of condemnation of the property.)

Meanwhile, the land was sitting unused, and in July 1994 the Harbor Department granted a revocable permit to the L.A. Regional Food Bank – a private, nonprofit food-distribution network housed across the street from the Lancer site – to occupy and use the site as a community garden.

While poor families were cultivating the land and building community there, the L.A. City Council and then-Mayor Richard Riordan began in the late 1990s to discuss conversion of the site into an industrial park as part of Riordan’s Genesis L.A. economic-development program. Concerned Citizens of South Central, which had fought against the Lancer incinerator project, is listed in a 2001 report created for the mayor’s office as endorsing the proposal for the Lancer Industrial Park.

In 2001, Horowitz sued the city for breach of contract and shortly received a letter from City Attorney Rocky Delgadillo’s office, stating the city had denied his claim.

The farm continued to grow.

Then, in April 2002, operations began on the Alameda Corridor, a rail-cargo expressway linking the ports of Los Angeles and Long Beach to the inland transcontinental rail network that runs alongside the South Central Farm. This made the site valuable real estate for commercial or industrial development, pitting the environmental and social value of the community garden against the profit potential of developing the land for global-trade use.

In closed negotiations in 2003, the City of L.A. settled with Horowitz, selling him the land for just over $5 million – less than half the amount for which the land was sold to the Harbor Department in 1994 and less than the $6.6 million the City Council described as "less than fair-market value" in its cancelled 1991 sale to the Nehemiah Public Housing Corporation. As part of the 2003 settlement, Horowitz agreed to donate 2.6 acres of the site for a public soccer field. The City Council approved the closed-session agreement between Horowitz’s attorneys and City Attorney Delgadillo’s office. Councilmember Jan Perry, who represents the 9th Council District, in which the farm is located, began seeking alternate sites to relocate the gardens.

Patrick Dunlevy, an attorney representing the farmers, says that despite repeated requests, he has never seen documents detailing the negotiations that led up to the signed settlement agreement. "There are exchanges of letters between counsel, but nothing about the nitty-gritty of the negotiations and nothing indicating why the city decided to keel over and settle the lawsuit when they were from all appearances about to win by having the court dismiss the case."

Shortly after the settlement, on January 8, 2004, Horowitz gave written notice to the Food Bank that their revocable permit to occupy the land would "terminate as of February 29, 2004."

Upon learning of their imminent removal from the land, the farmers filed a lawsuit arguing that the city’s closed-session settlement with Horowitz violated their rights, and they were granted an injunction allowing them to remain on the land until the case was resolved. When an appellate court ruled against them in June 2005, they appealed to the California Supreme Court, which in October 2005 refused to hear their case.

On March 1, 2006, Horowitz issued an eviction notice, which would be stayed pending resolution of a separate lawsuit filed by the farmers. The basis of this last legal challenge is that the city’s behind-closed-doors settlement with Horowitz constitutes waste "for two reasons," attorney Dunlevy told TNS. "The city sold it to the developer for far less than what it was worth, and the city sold it to settle a meritless lawsuit." While that case moves through the courts, the farmers and their allies are seeking political solutions.

Currently, Horowitz is engaged in negotiations with the Trust for Public Land, which hopes to buy the land for public community-garden use.

Rad Geek argued that the state's seizure of the land rendered the land unowned, and that the farmers who homesteaded it and first mixed their labor with the undeveloped land in the interim period were the rightful owners.

In response to the predictably visceral sympathy for Horwitz expressed at Mises Blog, Brad Spangler entered the fray in the comments. He expressed the same opinion as Rad Geek on the property rights of the farmers, as homesteaders of unowned land under Rothbard's version of Lockeanism. Among the most controversial of his arguments were these:

That land became morally "unowned" and "abandoned" the instant the official title passed to the city. The first non-state users/occupiers to "mix their labor" with the land (as Locke would have put it) become the owners, morally....

...while that land was in the possession of the state, it became unowned and thus able to be homesteaded by non-state third parties, such as the farmers. They homesteaded it while it was unowned, making it their property, morally.

As I will discuss in my assessment of the controversy below, these arguments are problematic, and at least deserve further examination before they can be accepted.

David Reynolds, at the view from below, also wrote an eloquent defense of the farmers.

And finally, the story provoked a heated debate at Reason Hit&Run after Jesse Walker posted on it. In the discussion there, several commenters seemed to operate on the legalistic assumption that any title is good on the face of it. For instance, smalls:

I don't think Horowitz should be made into the bad guy here. As long as eminent domain is legal, he hasn't done anything wrong. If you have a problem with eminent domain (which I do), then take it up with the SCOTUS.

...and Ayn Randian:

Simple fact: Horowitz, through a company OWNED the land; city took land (legally, but not morally right) and OWNED it...it was theirs to give. Yet again, a problem with government, but it's Horowitz's land because it was the city's to give. Period.

...and Ayn Randian again:

A pure definition of homesteading is when you occupy land unowned by anyone, even the government. Now, we can go round and round and say the government can't really own anything because it's really our money, yadda yadda. But, as odious as eminent domain is, it's the law, and legally speaking there was an owner, and you can't homestead owned land.

...and Woozle:

Anyway, the city owned the land, even if it lay unused, even if they obtained it through eminent domain. They sold it to Horowitz for $5 million, which benefited the entire population of Los Angeles. Case closed.

In response to the last remark, our own good ol' quasibill retorted:

Each sentence violates principles of libertarian thought so profoundly that I'm guessing you got your concept of "libertarian" from Insta-sellout.

As for me, well, shee-it. If I seriously bought into all that "the law is the law, and if you don't like it change it, but until then keep obeying it" bullshit, I'd have become a fucking Republican.

kevrob also threw in a quote from Locke's Second Treatise on the homesteading process. Several commenters, while acknowledging that Locke might be edifying for an audience of middle class white people who had been safely prepared for such esoteric doctrine, seemed to consider it wiser to keep him safely "locked" away until the present danger had passed. After all, as useful as Locke may be at times for rich white guys, we don't want him putting funny ideas into the heads of those people.

Ayn Randian, especially, was upset about all this newfangledy stuff about Locke and the common law of adverse possession. Why just imagine: if you own a vacant tract of undeveloped woodland, and go ten years without bothering to inspect it, and somebody raises vegetables on it while you fail to make any reasonable effort to assert your title, somebody might actually construe that as "abandonment." Mercy me! To joe, who had commented favorably on the Lockean doctrine, Ayn Randian fumed:

Like it or not, joe, your position is garbage; land is an object, with boundaries (ask a surveyor) that is owned...you have a deed/title and it's worth money. It's the same as any other good, and if you own it, that's it...you can let it sit for 100 years as far as I am concerned, because it's yours to do with as you please.

That's what ownership means. You know, I always rolled my eyes when people complained about the leftward tilt of Reason. Now I am not so sure.

In other words, anything the state says is a land title is a land title, even if it declares David Rockefeller Duke of New York and grants him the entire state as a fiefdom. And there's no such thing as abandonment or salvage in a legitimate private property system. Anyone who says otherwise is Che Guevara. So I guess Locke's now up to replace Kant as the most evil man in history. Wouldn't be surprised if Randian is also some kind of Galamboid who thinks we ought to be paying royalties to the inventor of the alphabet.

What Ayn Randian calls property rights, Jerry Tuccille preferred to call "land-grabbism":

Free market anarchists base their theories of private property rights on the homestead principle: a person has the right to a private piece of real estate provided he mixes his labor with it and alters it in some way. Anarcho-land grabbers recognize no such restrictions. Simply climb to the highest mountain peak and claim all you can see. It then becomes morally and sacredly your own and no one else can so much as step on it. [The Libertarian Forum, November 1, 1970]

My Assessment:

To the extent that Rad Geek's and Brad Spangler's cases rest on Rothbard's radical Lockeanism, I would advise caution. One of Rothbard's disciples who also favored homesteading of state property, Hans Hermann Hoppe, would have denied that state seizure extinguished the original owner's title. Hoppe argued that state industry in post-Communist systems should be treated as the property of the labor force working it, because it was either predominantly capital accumulated under state ownership, or built from scratch under state ownership; land, on the other hand, should go to the original pre-Communist owners or their heirs, if they could be identified. So at least in cases of simple, uncompensated seizure, Rothbardianism is shaky ground for arguing that original property titles cease to exist.

But there are several other issues that I didn't really see addressed in all the debate, that weaken Horowitz's case considerably.

First: just what were the relations between the municipal government and the real estate firm in that eminent domain deal in the first place. Here in Northwest Arkansas, where local government itself is pretty much a showcase property of the big real estate agencies, it's pretty common for government to offer a sweetheard eminent domain deal to some politically connected landowner, sometimes taking property off the hands of a distressed owner for far more than its market value. At various times, city or county governments have bought land from their cronies for, among other things, a public golf course and a new county courthouse.

Second, the fact that the original owners received some money at least goes partway to stealing the fire from their moral claims to have been robbed. Certainly any forcing of a sale by the state is illegitimate, as is its arbitrary assignment of a standard market price to something the owner may subjectively value at a far higher rate. But Horowitz and his real estate associates were paid at least what the going price was for land in that neighborhood, so they're far from the victimized status they'd deserve if it were taken without compensation. And since as a real estate company they were holding it for purely speculative purposes, and sentimental value played little or no role in their subjective valuation of it (as it might have with a family business or home), the price they were paid is more suitable as a proxy for its "real" value than in many such cases. So even if the eminent domain "purchase" was far from a legitimate market purchase, the money paid for the land certainly weakens anyone's claim to be the rightful original owner at the expense of the farmers subsequently homesteading and developing it.

Considering the inflation in real estate prices since the 1980s, and comparing the $5 million that the original owners were paid to Horowitz's asking price today, it sounds like the original owners may have got a pretty sweet deal when the land was first condemned. That takes us back to that bit about political collusion between local governments and E.D. "victims." I wouldn't be at all surprised if Horowitz had made out like a bandit when the city originally bought the land, and then again when he bought it back at a sweetheart price.

At any rate, uncompensated seizure and compensated E.D. condemnation should be considered entirely different categories when it comes to assessing the legitimacy of any claims to have the land "restored." On that basis, I agree with Rad Geek and Brad Spangler that the farmers were homesteading unowned property. The original title wasn't extinguished by government seizure as such, in my opinion; but the fact that something approximating market value was received by Horowitz (and more importantly, as we see below, that the land had never been developed) is enough to extinguish the title, at least to the point that considerable weight is added to the claims of the farmers.

Given this, it follows that the subsequent title acquired by Horowitz, in negotiation with the city, was null and void because the city had no legitimate claim to negate the property rights of the farmer-homesteaders. Certainly to claim, as Paul D. did in the Mises Blog comments, that "[m]orally, the plot has been Horowitz's all along, even though the city appropriated it," strains Rothbardianism past the breaking point.

We've yet to consider, among the considerations that were left out, the most important of all: the fact that the land was undeveloped at the time it began to be farmed. I don't even need to defend the farmers on the basis of Ingalls-Tucker occupancy-and-use tenure, because as The Times was so helpful as to inform us, the land was undeveloped (at least, as Rad Geek points out, until the farmers homesteaded it). Note the effusive propaganda on the jobs and economic benefits to come from having the land "developed." As Rothbard argued, the first owner of a vacant tract of land is the homesteader who alters it in some way with his labor. All previous holders of title to unimproved land are simply the equivalent of feudal lords or tax-farmers, who in effect impose a tax on the rightful first owner. This is an example of how most of the titles to vacant land that we Tuckerites consider illegitimate are also illegitimate by radical Lockeans standards.

Spangler (after acknowledging, in response to commenter Peter's quote from The Ethics of Liberty, that he'd overstated Rothbard's position on the unowned status of state assets whose original owners could still be found), brought up the same point himself:

Another important question:

Was the land really "owned", in a moral sense, by the investor groups if it had never been put to any use in the first place?

If the farmers were the first to ever really do anything with that land, then they would surely be the rightful owners in a moral sense -- that is, if it had never actually been homesteaded at all in the first place by Horowitz and associates, regardless of what machinations have occurred with regard to the official title to the plot.

Does anyone know the development status of the land prior to the eminent domain seizure in 1985?

And as he argues later in the same thread, it's fairly common for such vacant land to have never been legitimately owned: vast tracts of vacant land were originally claimed by the state, distributed to its cronies, and then passed from one politically-connected speculator to another without having ever been actually homesteaded. The fact that one such sizeable tract still exists in an urban area like Los Angeles just backs up Albert Nock's observation on the undevelopment of land in old settled areas resulting from political appropriation of the land:

If our geographical development had been determined in a natural way, by the demands of use instead of the demands of speculation [that is, appropriated by labor], our western frontier would not yet be anywhere near the Mississippi River. Rhode Island is the most highly-populated member of the Union, yet one may drive from one end of it to the other on one of its "through" highways, and see hardly a sign of human occupancy.


Blogger Charles Johnson (Rad Geek) said...


Thanks for the round-up, and for the analysis.

A couple of points, in reverse order.

First, I don't think it's safe to infer from what's been posted that the lot was never developed by Horowitz and the other real estate investors who held it prior to the 1985 seizure. Maybe it was, but maybe it wasn't. It was a vacant lot in 1994, when the farmers got to it, due to the city government's decision to mothball the trash incinerator project that they'd intended to put up on the land. But there may very well have been something there prior to the mothballing of the project, which was bulldozed after the city seized the property. From what I can gather the formal method by which the city seized the land involved a condemnation order, which indicates that there might have been some structures on the land. I just don't know yet; Dain and Brad are trying to find out what the property looked like before the city government sank its claws into it.

Second, I actually don't see how the money that the city government gave Horowitz in the forced "sale" matters on the question of whether Horowitz has a claim to the land. Since the transfer was made under duress, throwing some money at Horowitz doesn't invalidate whatever claims he has to recovery of the land itself, if he would prefer that to the money. It's true that if you rob me of $1,000 in gold and then give me $400 back in silver, I'd only be entitled to recover $600 more back from you, not the full $1,000 in gold. But that's because the value of the metals is monetary, and the money is fungible, so by giving me back $400 in silver you've effectively given me back part of what you stole from me in the first place. If you forced me at gunpoint to sell my car to you for $1,000, then I'm still fully entitled to recover the car itself, not just enough money to make up the difference between the forced sale price and whatever price I would have freely agreed to sell the car at. I'm entitled to recover the whole thing, because it never stopped being my property; it just stopped being in my immediate possession. Maybe I should return the money that you gave me for the car once I've recovered it, but I doubt that that's true, either.

Third, I didn't state my position clearly enough in the post and had to clarify it in the following comment thread. I don't think that anything that the the government seizes automatically counts as unowned and suitable for homesteading. My position is that governments don't have any property rights in anything, so if the city government claims title to the lot it is morally either unowned, or else owned by someone else. However, if the property was seized directly from one or more identifiable victims, then those victim have a legitimately enforceable claim to recovery of the property that was stolen from them.

That would tend to count in favor of Horowitz's moral right to reclaim his former share of the land, as the right-Rothbardians have been arguing. (It would, of course, do nothing at all to justify his forcible seizure of the entire lot; there's no excuse for treating that as anything but an act of privateering under the State's colors.) But I think that other factors undermine the claim that he has to his former share of the land.

Specifically, while Horowitz may have a claim to recover compensation for the lost property from the city officials who stole it from him, he lost his claim to recover the property itself when the farmers began to cultivate it. That's because the property had been abandoned for years when they came to it. Now, the abandonment resulted from the city's seizure of the property and its enforcement of a piratical property title on it; since Horowitz et al. only "abandoned" their former property under duress, that does not affect his right to come back later and demand compensation for the lost property. But it does affect innocent third parties' right to treat the land as open for homesteading. And once the farmers have established a claim on the abandoned property through years of transformational labor, Horowitz can no longer recover his property out from under them. Since he made no public effort to recover the land until nearly a decade after the farmers had begun to cultivate the land, his only legitimate claim, if he has any, is against the city officials. The farmers don't owe him anything.

While I disagee with the position that Horowitz has a right to recover a share of the land by dint of rightful ownership, I don't think it's beyond the pale. I can't say the same thing for the sorts of arguments advanced by the anti-farmers commenters at Hit and Run. The entire argument boils down to the claim that we are morally obligated to defend every arbitrary entitlement to a share of the loot that's handed out by the State, because that's how the pirates' code says the booty should be divvied up. I guess that if people want to interpret "private property rights" as nothing more than that, they can; the piratical view of property rights has a well-established pedigree. But they ought to at least have the decency to stop calling themselves "libertarians" if they are going to advance that sort of argument, and come up with a new, more descriptive name for themselves, such as "Constitutionalists," or "entitlementarians," or perhaps "liberal Mussolinists."

June 23, 2006 1:38 AM  
Anonymous Anonymous said...


After reading all the same discussions, I think this is the perfect scenario for your argument that specific property rights regimes, especially with respect to real estate, are arbitrary to a large extent.

For example, my preferred approach is a sort of modified common law approach. Fee simple ownership in land with a 5 year adverse possession objective test for determining abandonment. In this case, such a test would deny any ownership of the farmers by right of their past effort, as their claim was not hostile (they claimed to be leasing it). Of course, this does nothing to determine who IS the proper owner at this point, other than one of two arbitrary options 1) return to the title of each of the previous owners that had it seized; or 2) declare it unowned at this time, which results in de facto possession rights, but not yet title rights, for the farmers.

Hoppe's rule, while attractive superficially, has a big problem - where do you stop? What if the prior property owner used government subsidies to purchase the land? What if they themselves hold the land only because of prior state-like activity (think claims of aristocracy in Europe)? What if the original title is itself the result of theft, robbery, or worse? Where do you cut off your analysis? That's an arbitrary decision, which can have many valid answers, I think. If applied strictly, the land in question would most likely go to some AmerIndian tribe - but I doubt Hoppe would advocate that.

To the extent that I understand mutualism, I guess the lease aspect that I find so important would become totally irrelevant, as no landowner had that right. Use seems to be the utmost determinant (but from your recent comments, perhaps not the only one?)

All of them seem to have arbitrary components involved. And this is exactly the kind of thing decentralized, market or near-market (i.e. small city state providers) legal doctrine provision would be best at determining which one works best for a given group of people at a given time.

June 23, 2006 6:45 AM  
Anonymous Anonymous said...

I suspect the largest reason for the barking against the farmers actually had nothing to do with what those people thought about property rights, but rather a visceral reaction against a stereotype in their heads. The mainstream media coverage amounting to "Daryl Hannah & some hippies are in a tree" didn't exactly help in that respect.

My first reaction to the whole mess upon hearing enough about it was "damn, the city's just screwing everybody isn't it?" since at the time I thought it was the farmers vs Horwitz himself, & I personally feel that fair-market value isn't enough for eminent domain compensation since market value is what people ask who want to sell (though IMO eminent domain power should be abolished outright anyway). However, the more I hear about this the more it's sounding like it was government collusion that got the land for Horwitz in the first place, & the government cannot "steal" from what is an agent of it.

June 23, 2006 10:29 AM  
Anonymous Anonymous said...

Here's another lead, this one from "Nimda" at Nader.org. She dropped this line:

"A little history will frame the present conflict. In 1986, the City of Los Angeles took over this scarred, debris-ridden tract by eminent domain for the purpose of building a waste incinerator."

I've asked her about the source of this description of the land, and am waiting to hear back. Keep y'all posted.


June 23, 2006 11:00 AM  
Anonymous Anonymous said...

If ever there were an example to illustrate "hard cases make bad law", this is it.

I think it also iillustrates another clichéd phrase: "justice is history".

- Josh

June 23, 2006 4:56 PM  
Blogger Kevin Carson said...

Rad Geek,

Thanks for the clarification on the land's development status. As for the "sale" price under eminent domain, I wouldn't consider it a legitimate "sale," obviously, since it was under duress. But the fact that (as far as we know) the payment was the assessed market value of land in that neighborhood at least weakens Horowitz's claims as a victim to take the land back at the expense of those currently occupying it. If the farmers have some presumptive right to remain on land they cultivated after it was abandoned under duress, then surely that presumption is strengthened by the fact that Horowitz was compensated.


Your 5-year abandonment rule would probably send the anti-SCF commenters at Reason into a cigarette-puffing, cape-twirling frenzy of pure rage.


I suspect you're right. The negative commenters at Mises and Reason just saw the "urban farmers vs. rich guy" framing, and it set off their patented Eric Cartman "bunch of goddamn tree-hugging hippie crap" alarms. For such people, the rich guy is always the victim--unless they're putting a faux populist spin on criticism of some limosine liberal like Ted Kennedy or Hillary Clinton.


Thanks for the info.


Well, as one of the commenters at Mises said, the pro-farmer people are "oriented toward the past." Of course, I could use the same argument if the guy I'd just robbed got up off the sidewalk and demanded his wallet back. Property claims, by their very nature, are about "the past."

July 02, 2006 11:31 AM  
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September 25, 2006 10:21 AM  

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