April 4, 2012

20 years of Pacific Northwest victories: the garden wall that sparked an "international" incident

By Brian T. Hodges Senior Attorney

It probably goes on record as one of the most bizarre phone calls the Northwest Center has ever received.  A few years ago, border-town retirees Herbert and Shirley Leu dialed our number to ask us what they should do about threats they were receiving from a little-known “international” agency that accused them of having violated a colonial-era treaty when the Leus built a retaining wall in their backyard.  Although it sounded far-fetched, the Leus’ turned out to be right.  Agents from the International Boundary Commission—a treaty-based federal agency charged with maintaining the border between the U.S. and Canada—were threatening to bulldoze the Leus’ wall because it allegedly interfered with a mysterious “boundary vista” zone on our nation’s northern border.

The Leus and their retaining wall

PLF attorneys responded by filing suit on behalf of the Leus, arguing that the IBC had fabricated its authority to regulate a “boundary vista,” and violated the Leus’ constitutional right against taking of their private property when it ordered the Leus to tear down the wall.  While the case was pending, however, a dispute arose about whether the IBC could hire private counsel to represent it, or if it should be represented by attorneys from the Department of Justice.  The head of the IBC, Dennis Schornack, maintained that the agency was “international” and therefore not required to accept federal counsel.  The DOJ, on the other hand, argued that the IBC is a federal agency subject to executive oversight, and directed the IBC to dismiss its private lawyers.  When Schornack refused to comply, President George W. Bush fired him and appointed his successor.  But the story didn’t end there.

Schornack objected to being forced to relinquish his post.  He theorized that, as an “international” agency, he was not subject to the president’s constitutional power to remove him from office, and also not subject to the U.S. Constitution’s prohibition against taking the Leus’ property.  Meanwhile, Herbert and Shirley were waiting for the court to determine if they would be able to protect their little wall from an “international” agency that believed it was above American law.

Finally, in 2010, the Ninth Circuit Court of Appeals ruled that Schornack did not have standing to challenge the president’s decision to terminate his appointment in the context of the Leus’ lawsuit against the IBC.  He would have to file his own lawsuit against the president if he wanted to argue that he was immune from termination.  With the disruption over agency control out of the way, PLF was able to settle the Leus’ lawsuit with the DOJ legal team.  The Leus’ wall is still standing today.

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