Private Property Machinations
by Bob Barr

If your state does not share a border with Canada, that's a good thing--because states adjacent to Canada are subject to the machinations of a agency called the International Boundary Commission and that, friends, is something no property owner wants.

The commission is small by Washington standards — a $1.5 million budget and a six-person staff. Its very existence is known to no more than a handful of diehard bureaucrats in Washington, D.C., and Ottawa. That is, until recently.

Now, thanks to a dispute pitting the former U.S. commissioner — Dennis Schornack — against a middle-aged couple living alongside the U.S.-Canadian border in the small town of Blaine, in Washington state, the IBC is receiving more national scrutiny than it probably had received in its entire 99-year existence.

The landowners — Herbert and Shirley Leu — moved to the town in the state's northwestern corner two years ago from Hawaii. Their modest home sits just outside a 10-foot buffer on each side of the 5,525-mile-long border that separates the United States from Canada. This 20-foot-wide buffer is relevant because a 1925 treaty conferred on the IBC the responsibility of maintaining and demarcating the lengthy and largely unprotected border. The commission's work is further described as "keeping the vista cleared" along the border. A 1960 law further defined this responsibility to include regulation of construction within that 10-foot buffer zone on each side of the border line. And therein lies the problem.

In an effort to control erosion in their backyard, which slopes downward toward a ditch running along the border, the Leus decided several months ago to build a 4-foot-high concrete retaining wall around their backyard. To ensure they did not run afoul of the government, the Leus dutifully confirmed they were in accord with all local and state ordinances before they built the approximately 85-foot-long retaining wall. They made sure, for example, that the wall would lie completely inside their property line, some eight feet from the actual border.

After they constructed the wall and just as they were about to landscape their yard now that the erosion problem was solved, in steps the imperious IBC commissioner, Schornack. First by letter, and then by personal visit, the American IBC commissioner ordered the Leus to tear down their retaining wall, or else he would have it taken down and the costs billed to the homeowners.

What so irritated Schornack that he concluded it necessary to draw a line in the sand so to speak, and risk his job — which he eventually lost — over this slab of concrete traversing but 85 feet of a border more than 5,500 miles long?

The commissioner, since fired by the same president who hired him, apparently was greatly offended that two residents of the United States — one Canadian, the other American — had the audacity to take reasonable steps to protect their investment in a home without seeking and obtaining his permission. He decided they must be taught a lesson.

Drawing on language from the earlier treaties, Schornack told the Leus that their retaining wall was an "obstruction" prohibited by the 1908 treaty and that it marred the "vista" to be protected along the 20-foot-wide buffer between the countries. Undeterred by the facts that the retaining wall "obstructed" nothing, and that its 4-foot height didn't mar any "vista," the former commissioner threatened to sue to force the Leus to do his bidding. To Schornack's consternation, however, the U.S. Justice Department sided with the landowners.

The Justice Department lawyers, unlike Schornack, understood that they are bound by the law and that under our country's Constitution, such things as notice, due process and property rights still have some relevance. The department essentially told Schornack (who previously worked for former Michigan Gov. John Engler in a similar capacity) to take a hike. When the obstinate former commissioner continued his attack on the Leus, his boss — George W. Bush — fired him.

Schornack sued, maintaining that his hallowed position as a commissioner on the IBC insulated him from being fired or removed from office for any reason, and that decisions such as he attempted to take against the Leus were not reviewable by anyone. Hopefully the court to which his lawsuit has been assigned will give his specious arguments more due process than he gave the Leus; and then throw the case out of court.

Former congressman and U.S. attorney Bob Barr practices law in Atlanta.