Whatcom County wall squabble reaches beyond the border

What began as a squabble over a backyard retaining wall has found its way into a Seattle courtroom, where a federal judge is being asked to make a landmark decision about the limits of presidential power, the scope of the federal government and the meaning of century-old international treaties.

Judge Marsha Pechman weighed all these issues during a hearing Wednesday in U.S. District Court concerning the increasingly surreal controversy over a concrete wall in Blaine, Whatcom County, built by Shirley-Ann and Herbert Leu.

The Leus filed a lawsuit in April to block the little-known International Boundary Commission from removing the wall, which the IBC claimed encroached on the 20-foot protected "boundary vista" on either side of the U.S.- Canadian border.

It was the first lawsuit against the IBC since its creation in 1908. The tiny agency, led by one commissioner from Canada and one from the U.S., oversees the border between the U.S. and Canada, and keeps it clear of brush and other obstructions.

Dennis Schornack, the IBC commissioner from the U.S. appointed by President Bush in 2002, informed the Leus in February that they had to remove the wall or the IBC would take it down.

The Leus responded by filing a suit.

Schornack initially was advised by the State Department and the Justice Department to hire outside counsel to represent the IBC in the suit.

The Justice Department later insisted that it would represent the IBC and instructed Schornack to fire his outside counsel and seek to settle the case, according to court papers.

Schornack resisted, insisting it was a matter of national security that the IBC force the Leus to remove their wall.

On July 10, Bush fired Schornack as IBC commissioner, presumably over his handling of the dispute.

Bush quickly appointed a new commissioner, David Bernhardt, who instructed the attorneys hired by Schornack to stand down.

But Schornack argued in court papers that Bush did not have the authority to fire him, because the treaties that established the IBC say that the president can fill only vacancies caused by the "death, resignation or other disability" of a commissioner.

The president "does not have unfettered authority to remove officials" of international agencies, Elliott Feldman, one of Schornack's attorneys, said during Wednesday's hearing. Consequently, Feldman said, "Commissioner Bernhardt has been appointed illegally under U.S. law and under the treaty."

Another key issue debated at Wednesday's hearing was the stature of the IBC itself. The Justice Department insisted that the IBC is an arm of the U.S. government because it receives funding from the U.S. government and because the president appoints one of its two commissioners.

And if the IBC is an arm of the government, the Justice Department must represent it — not outside lawyers, assistant U.S. Attorney Kipnis said.

Mike McKay, the former U.S. Attorney in Seattle who is part of Schornack's legal team, disagreed.

McKay said the 1908 and 1925 treaties that created the IBC purposely made it an independent, international agency distinct from the government so it would be insulated from political disputes.

Pechman said she will issue a written ruling in the next two weeks on the issues raised in Wednesday's hearing. A decision on the fate of the Leus' wall is not expected anytime soon.

David Bowermaster: 206-464-2724 or dbowermaster@seattletimes.com