The Leus' garden blooms despite legal battle


Author: Brian T. Hodges

Shirley and Herbert Leus’ garden seems to have been all but lost to the maelstrom that took over their case, Leu v. International Boundary Commission. If you recall, this is the case where the U.S. Commissioner to the International Boundary Commission ordered retired couple Shirley and Herbert Leu to remove a small garden wall that they built on their retirement property.

Leu Wall 3 The Commissioner claimed that the garden wall interfered with the Commission’s treaty-based duty to maintain an effective boundary between Canada and the United States. Back on 2007, when this lawsuit was first filed, the International Boundary Commission ordered the Leus stop all construction and landscaping activities in the vicinity of the garden wall.  The Leus were forced to live amongst construction debris on an unfinished property.

The United States disagreed with the Commissioner’s actions. President Bush terminated the Commissioner’s appointment. After which, the International Boundary Commission settled the lawsuit by allowing the Leus to keep their garden intact.

Without filing his own claims or naming a defendant, the deposed Commissioner unsuccessfully challenged the President’s authority to terminate his appointment in the Leus’ lawsuit. Last month, the Ninth Circuit dismissed his appeal for lack of standing. Since his dismissal from office, legal scholars have focused on the former Commissioner’s claims regarding the President’s removal power; the separation of powers (calling this case a modern Marbury v. Madison); and standing and redressability requirements for claims against the President.

IMG_1951 One legal blog ended its recent coverage by noting "[i]t is unclear whether Shirley-Ann and Herbert Leu will be able to keep their wall."  Fortunately, the blog is incorrect.  The future of the Leus' garden is not unclear, it has just been lost to all of the sound and fury surrounding this case.

In January 2009, the International Boundary Commission agreed that the garden retaining wall did not interfere with any of the commission’s duties and agreed to allow the Leus to keep their garden intact. The settlement allowed the Leus to complete their garden, which they can now enjoy.