Agreement allows Blaine couple to keep disputed wall

Published on Thu, Jan 22, 2009 by Jack KintnerHerb and Shirley Leu of Blaine signed an agreement filed in federal district court in Seattle last week that allows them to keep a disputed retaining wall in the backyard of their West 99th Lane home, a structure that authorities once insisted was located 30 inches too close to the international border. The Leu’s northern property line runs along Canada’s Zero Avenue.

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Agreement allows Blaine couple to keep disputed wall

By Jack Kintner

Herb and Shirley Leu of Blaine signed an agreement filed in federal district court in Seattle last week that allows them to keep a disputed retaining wall in the backyard of their West 99th Lane home, a structure that authorities once insisted was located 30 inches too close to the international border. The Leu’s northern property line runs along Canada’s Zero Avenue.

Worried about their yard eroding into the Zero Avenue ditch, the Leu’s built their four-foot high 85-foot long wall in November of 2006 for $15,000. To build it their contractor had to pipe 17 yards of concrete over the top of the house in a snorkel to avoid having to drive into Canada.

Three months later in February of 2007 commissioner Dennis Schornack, the U.S. Commissioner of the International Boundary Commission (IBC), walked from the car he’d parked on Zero Avenue to the Leu’s house, crossing the international boundary line, and told them that their wall encroached on the “boundary vista,” a swath of ground 20 feet wide that straddles the border.

Schornack told them the IBC requires that area to remain clear of vegetation and structures, although the Leu’s pointed out exceptions, including the overgrown lot next door on the east side of their yard.

“He was really mean,” said Shirley Leu, “and told us that unless the wall was gone in 60 days then they would remove it at our expense.”
The couple met soon afterward with U.S. Representative Rick Larsen’s staff when the congressman visited Blaine later that month.

A subsequent story in the March 1, 2007 issue of The Northern Light drew the attention of the Bellevue-based Pacific Legal Foundation (PLF) who filed a federal lawsuit on the Leu’s behalf against the IBC and Commissioner Schornack the following month.

The David and Goliath story of the retired Blaine couple contending with what they described as an obscure but arrogant federal agency quickly went national, and since then the Leus have been interviewed several times by major newspapers and networks like CNN and Fox News.

“The [IBC] demolition order was unfair, illegal, and unconstitutional,” said PLF attorney Brian Hodges, “because there were no formal hearings or condemnation proceedings, no legal precedents that were cited to back up their demand and the Leus weren’t offered a penny in compensation.”

Had the matter rested there then it likely would be over by now since both parties have since reached an agreement, signed last week, that allows the wall to remain as long as the Leus drop their suit and promise not to build or plant anything higher than 30 inches above the ground in that area.

But complications arose when Schornack went after the Leus in court personally on July 5, 2007, using his own private attorneys to represent himself and the IBC instead of relying on Justice Department staff to defend his agency as would normally be done.

Hodges said this needlessly side-tracked the process because the issue as to whether Schornack is even still part of the case must be settled first before the basic lawsuit can proceed, even if all that’s left is having the court rule on an unopposed motion agreed to by both parties to dismiss it altogether.

This is because on July 10, 2007, five days after Schornack made his move in court, he was fired and then contested the White House’s right to do so, claiming his appointment is for life. He found out about the firing when a minor presidential assistant sent a fax directly from the White House telling him he’d been replaced by acting commissioner David Bernhardt, who had already moved into his Washington, D.C., office.

Schornack’s attorney, Elliot Feldman of Washington, D.C., fought back by asking the court to suppress any and all papers filed by the Justice Department in the case because Schornack had his own legal team.

The court not only refused to do that but ruled that only Justice Department attorneys may represent the IBC and that because he’d been fired Schornack “..is no longer a party to this litigation.”

Schornack, through Feldman, appealed that ruling in November of 2007, by which time the disputed wall was already a year old. The federal court responded by issuing a stay of the litigation that the Leus were pursuing against the IBC pending settlement of Schornack’s appeal.

In the mean time, officials from both Homeland Security and the U.S. Border Patrol examined the Leu’s wall and agreed that it does not obstruct their view of the boundary.

Other things have been allowed in the boundary vista since the wall was built, such as a line of boulders in front of the Smuggler’s Inn installed to prevent people from driving across the lawn into the U.S. from Zero Avenue.

Schornack’s appeal is slowly working its way through the Ninth Circuit Court of Appeals. The wall is now a little over two years old and, the IBC agreed last week, will not have to be removed if the Leus drop their suit and promise not to plant or build anything higher than 30 inches within ten feet of the boundary.

Both parties signed off on this last week, after which the defendants in the suit, IBC and Bernhardt, Schornack’s replacement, filed a motion back in federal district court to dismiss the suit entirely and to remove the stay of litigation that otherwise prevents the matter from being resolved until Schornack’s appeals are exhausted.

Hodges, the Leu’s attorney, did not oppose the motion, but until Judge Marsha Pechman rules on it the Leus are still waiting. Emily Langlie, a spokesperson for the U.S. Attorney’s Office in Seattle, said that no one knows when the judge will rule on the matter.

“People have already told us congratulations,” Shirley Leu said, “but it’s still not quite over completely, and until it is we still can’t finish our landscaping, put this in the past and get on with our lives.

“I guess we can buy the champagne now but we’re not opening it yet.”