Another brick in the wall

Published on Thu, Aug 9, 2007 by ack Kintner

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Another brick in the wall

By Jack Kintner

Herb and Shirley Leu still can’t finish their yard on 99th Avenue as their dispute continues with the International Boundary Commission (IBC) over the location of a concrete retaining wall the IBC says is 24 inches too close to the border.

It has grown into an international incident, drawing the White House into the legal wrangling and with it a great deal of media attention, bringing representatives from virtually every major print and electronic media outlet in both the US and Canada to their doorstep. They’ve arguably become the most famous couple in Blaine, doing more to publicize the town than anyone else since Sam Hill erected the Peace Arch in 1921.

Like the Leu’s retaining wall, the Peace Arch stands in a zone known as the “clear border vista,” a 20-foot wide swath along the international border that IBC commissioner Dennis Schornack maintains must be kept clear of obstructions, including vegetation, buildings and other structures.

The IBC, founded in 1908, has reviewed and agreed to allow such things as the Peace Arch and its adjoining park foliage, along with boundary monuments and the navigational tower located where the border meets Semiahmoo Bay. Anything built in the zone requires their approval, Schornack said, so last February Schornack and his Canadian counterpart Peter Sullivan confronted the Leus in their yard over a four-foot high wall they had built that Schornack says is two to three feet too close to the border.

The story was reported in this newspaper’s March 1-7, 2007, edition. Soon the Leus were contacted by attorney Brian Hodges of the Pacific Legal Foundation’s Bellevue office. The Sacramento based firm specializes in land rights issues and offered to sue the IBC on the Leu’s behalf in Federal District Court in Seattle, and at no charge. “Our lawsuit is about whether or not they can regulate the Leu’s private property,” said Hodges.

“All we really want,” said Shirley, “is to have our yard back so we can finish it, especially put our propane tank in its proper place.” Schornack and Sullivan, she said, “were very mean about it. We got scared because we don’t have the money to tear down and relocate the wall, and he started saying he’d do it in three weeks and at our expense.”

The lawsuit was filed in April, and at Schornack’s request the IBC was represented by the justice department, who advised Schornack to hire his own outside counsel to help with the case. He brought in Elliot Feldman, an international trade lawyer with the Washington, D.C. firm of Baker, Hostetler.

According to Feldman, he began working on the case with justice department lawyers in Seattle but was soon urged by acting assistant attorney general Ronald Tenpas to settle the suit out of court. He and Schornack resisted, saying that the Leu’s wall represented a legitimate risk to national security because it could lead to more construction within the 20-foot buffer that might provide shelter for terrorists.

When asked about vegetation currently obscuring the border near the Leu’s house, Feldman said that all vegetation within ten feet of the border is currently scheduled for trimming. “Despite the obvious Homeland Security issue, the administration refuses to fund it,” Feldman said, adding that there are pending diplomatic notes asking that the border vegetation be removed that the Bush administration has evidently ignored.

When Schornack’s legal team went ahead in Federal District Court in Seattle, the White House abruptly fired Schornack and his entire staff on July 10 in an action Feldman said was “unlawful. We do not feel that he’s been fired, legally or otherwise, even though an interim replacement has taken over his office.”

On July 11, Schornack sent a strong letter back to Bush saying that the IBC is an international and independent organization outside the U.S. government’s jurisdiction, according to the 1908 treaty that set it up, and that he can only be removed by “death, resignation or disability.”

Feldman said that there were no reasons given for the termination in the original message from White House aide Liza Wright. “Last week in Seattle the assistant U.S. attorney said in court that [Schornack] was terminated because he wasn’t seen to be on the defense team and wasn’t acting to represent the U.S.,” Feldman said, adding, “to our knowledge no President has ever tried to remove an IBC commissioner, so with respect to their attempt to terminate Schornack, this would appear to be unprecedented.”

Last month federal judge Marsha Pechman, in hearing the case, was faced with two sets of attorneys, one from the justice department and the other Schornack’s own legal team headed by Feldman, arguing over who was to represent the IBC and whether or not Bush’s firing of Schornack had been legal.

This week justice department attorneys filed a motion to dismiss both the Schornack’s attorneys and the Leu’s lawsuit.

“It was pretty strange,” said Hodges, “to see all these lawyers come steaming into court. It’s really a distraction from the central issue, but it’s going to get even more odd because Schornack is continuing to press his case against the Leus with his own attorneys.”

On July 12 Schornack’s attorneys filed a seven-day procedural motion to ask Judge Pechman to overturn Schornack’s termination and to kick the justice department attorneys off the case. Her ruling is expected sometime this week. Justice department lawyers were quoted as saying that they found Schornack’s arguments “breathtaking.”

In the meantime, dozens of major print and electronic media outlets have visited or called, including the New York Times, LA Times and all the major TV networks. Last week the Leus got up at 3 a.m. to be interviewed live on CNN. Part of the interview can be seen online at http://www.cnn. com/video/#/video/us/2007/07/29/
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