Border commissioner runs up against a wall

SEATTLE – In the increasingly curious legal battle over a 4-foot-high retaining wall along the U.S.-Canada border, the elderly owners – Herbert and Shirley-Ann Leu, of Blaine, Wash. – appear to have won the first round.

The head of the agency attempting to tear down the wall was fired last week by President Bush. Dennis Schornack, however, is fighting his termination in federal court, arguing that the White House has no firing authority over the agency.

“I’m sorry a guy has to lose his job over something like this,” said Herbert Leu, 69, a retired electrician. “It wasn’t our intention. We just wanted a little wall so our backyard wouldn’t fall into the ditch.”

The Leus’ property backs up to the border, which is marked by a drainage ditch that runs along a rural road. Canada lies just north of the ditch, a short hop from the edge of the Leu’s backyard.

The couple built the wall, stretching 85 feet and costing $15,000, last November after obtaining the necessary city permits. The structure, which was part of an overall plan to develop the quarter-acre lot, fell well within their property line.

But the International Boundary Commission informed the Leus the wall encroached 30 inches into the “boundary vista” – a 20-foot swath that runs the entire length of the border, 10 feet on each side. The IBC, responsible for keeping the boundary vista clear, ordered the Leus to tear down their wall.

In a hand-delivered letter, Schornack told the Leus that if they didn’t comply, “the commission may itself cause the wall to be removed and the expenses for the removal will be invoiced by you.”

The agency was established in 1925 by a little-known treaty between the United States and Canada for the purpose of maintaining the boundary from both sides. The IBC is comprised of a commissioner and small staff in each country. The main job entails hiring work crews to cut down shrubs and trees that grow along the 5,525-mile dividing line, the longest undefended boundary in the world.

Blaine is at the northern terminus of Interstate 5, the third-busiest checkpoint on the U.S.-Canada border. East of the checkpoint, on the outskirts of town, is the small neighborhood surrounded by woods where the Leus live. It is a mixed collection of old and new houses, old and young residents, and vacant lots still to be developed.

The Leus, like Blaine city officials who approved the wall, had never heard of the IBC. In April the couple sued the agency.

Schornack, unhappy with the way government lawyers were handling the Leu case, retained his own attorneys to work with the Department of Justice.

In court documents filed in federal district court in Seattle shortly after he was fired, Schornack wrote that a White House representative “reminded me … that I served at the pleasure of the president, and the president’s pleasure may run out.”

The White House representative then “went on to tell me what he wanted: for me to fire my lawyers and do whatever the Department of Justice instructed as to this case,” Schornack wrote. He refused to fire his lawyers.

Early Tuesday, the White House fired him by fax.

The president named David Bernhardt, solicitor for the Department of the Interior, to act as U.S. commissioner for the IBC until a permanent replacement is found, according to deputy commissioner Kyle Hipsley.

Neither the White House nor the DOJ would comment.

In his court motion, Schornack said the IBC was a binational entity independent of the U.S. government, and that the president had no authority to remove a commissioner. Schornack said the treaty makes clear that a vacancy can be created only if a commissioner dies, resigns or becomes disabled.

Schornack, who was appointed by Bush in 2002, said he had “done nothing wrong” and had “served honorably.”

“I think we’re talking about someone with an inflated view of his power,” said Brian Hodges, attorney for the Leus. Hodges belongs to the nonprofit Pacific Legal Foundation, which advocates for private-property rights. The Leu case, Hodges said, was becoming stranger than fiction.

“The White House? The Department of Justice?” Hodges said. “We’re talking about a 4-foot wall. We’re talking about a retired couple who just want to enjoy their home. This doesn’t equate to a constitutional crisis.”