Ninth Circuit to hear the case of the little garden that could (topple a federal official)


Author: Brian T. Hodges

The Ninth Circuit set Leu v. International Boundary Commission for oral argument on May 5, 2010 in Seattle.

Shirley and Herbert In 2006, retired couple Shirley and Herbert Leu built a small garden retaining wall in their back yard to stop their soil from wasting into a ditch. They had no idea that they would be causing any sort of problem. But this small garden wall soon turned into an international incident and spawned some truly bizarre twists.

You see, the ditch running behind their back yard is also the US-Canadian border. And shortly after the Leus built the garden retaining wall, U.S. and Canadian officials from an obscure organization, the International Boundary Commission, darkened the Leus’ doorstep, demanding that they take down the wall.


Ibc2 U.S. Commissioner Dennis Schornack claimed that the Leus’ garden retaining wall had violated a treaty between the U.S. and Canada (one of a series of treaties that settled the American Revolution!) and threatened that if the Leus did not "voluntarily" remove the wall within 45 days, the International Boundary Commission would enter their property, destroy and remove the wall, then send the Leus a bill. Schornack insisted that the treaty gave him absolute authority over a strip of land ten feet south of the border, which he called the "boundary vista." This was a complete shock to the Leus.

With no other recourse, the Leus contacted the Pacific Northwest office of the Pacific Legal Foundation, which filed a lawsuit against the IBC and the U.S. Commissioner in April 2007 seeking a declaration of the Leus’ rights and an injunction to keep the International Boundary Commission off their property.

The Leus’ lawsuit against the IBC and the U.S. Commissioner took an early, unexpected turn when two separate defense teams appeared on behalf of the same defendants. The Department of Justice appeared, and filed pleadings stating that the IBC and the U.S. commissioner were federal agents. However, a group of private lawyers, hired separately by Commissioner Schornack, also appeared purporting to represent the same defendants. These attorneys, however, claimed that the IBC was an independent international organization whose acts against the Leus were not subject to the laws of the United States and its Constitution. Schornack’s private defense team immediately began filing motions against the Department of Justice defense team.

The White House usually doesn’t get involved when a private property owner has a dispute with a government agency asserting questionable regulatory authority over their land. However, shortly after this dispute between the two defense teams erupted, President Bush stepped in and fired Commissioner Dennis Schornack. This should have ended the matter, but it didn’t.

Former Commissioner Schornack asked the trial court to overrule the President of the United States. He claimed that the President had no authority over him – according to him, it would take an act of the U.S. Senate to stop him from going after the Leus’ garden wall. The trial court denied Schornack’s motion concluding that the President’s termination was presumptively valid and removed him from the lawsuit (again).

In the meantime, the new IBC Commissioner visited the Leus property and, with the consent of his Canadian counterpart, agreed to settle the case allowing the Leus to keep their garden wall. The settlement acknowledges that the Leus’ backyard wall doesn’t infringe on the international border or a "boundary vista;" the settlement states that, as the wall currently stands, the international boundary is "visible" and is not "unduly obstructed."

But this, still, was not the end. Former Commissioner Schornack does not want his crusade against Bush (and the Leus) to end. He filed pleadings opposing the settlement, and filed an appeal with the Ninth Circuit Court of Appeals, seeking a judicial order overturning the President of the U.S. and reinstating him as Commissioner to the IBC.

Schornack’s insistence that he can prosecute a retired couple for building a small garden wall raises an issue of great concern relevant to our modern society. What impact will the increasingly unchecked bureaucracies have on our rights as American citizens? And will our constitution stand to protect us against injuries suffered at the hands of such organizations?

The Ninth Circuit has set this appeal for oral argument early next month.  For more information on the Leu v. IBC lawsuit, please see PLF's website.