Judge upholds Bush's firing of U.S.-Canada border official

SEATTLE — A federal judge today upheld President Bush's firing of a border official who tried to force a retired Washington couple to tear down a retaining wall along the U.S.-Canada border.

Bush fired Dennis Schornack in July. Schornack challenged the termination, arguing the White House had no authority over the International Boundary Commission, a binational treaty organization that maintains the U.S.-Canada border.

"The general rule is that, under the Appointments Clause of the United States Constitution," wrote U.S. District Court Judge Marsha J. Pechman, "the president can remove any officer whom he appoints."

Schornack and his attorney could not be reached for comment.

Brian T. Hodges, attorney for the Washington couple whose 4-foot retaining wall stands at the center of the dispute, said, "It's a victory in the sense that it brings us one day closer to resolving the issue so [his clients] can go on with their lives."

Shirley-Ann and Herbert Leu, of Blaine, still face a battle over the legality of their wall. That case will likely not be heard until early 2008, according to Hodges.

The Leus built the concrete retaining wall last November after obtaining the necessary permits. The wall, which stretches 85 feet across the length of their backyard, is part of a larger construction plan to develop the quarter-acre lot. Construction has been on hold pending the outcome of the case.

The wall falls within the Leus' property line, but the International Boundary Commission (IBC) informed the couple that it encroaches 30 inches into the "boundary vista" — a 20-foot-wide swath that runs the length of the border, 10 feet on each side.

If the Leus refused to tear down their wall, Schornack wrote in a hand-delivered letter, "the commission may itself cause the wall to be removed and the expenses for the removal will be invoiced by you."

The IBC was formed in 1925 by a little-known treaty between the United States and Canada for the purpose of maintaining the boundary from both sides. It is composed of a commissioner and small staff in each country. Schornack was the U.S. commissioner.

The Leus' property backs up to the edge of the border, which is marked by a drainage ditch that runs along a rural road. Canada lies just north of the ditch, a short distance from the edge of the Leus' backyard. The couple, like the Blaine city officials who approved the wall, had never heard of the IBC. The Leus sued.

Schornack, who had been appointed by Bush in 2002, didn't like the way government lawyers were handling the Leu case so he hired his own lawyers. The Department of Justice instructed Schornack to fire his lawyers, but he refused.

The White House fired him by fax.

David Bernhardt, a solicitor for the Justice Department, has been named interim commissioner until a permanent replacement is found.

The Leus could not be reached, but Hodges, who belongs to the nonprofit Pacific Legal Foundation, said the future of their property remains in limbo.

The yard looks the way it did at the beginning of the year, he said, like an interrupted construction project, with big holes, piles of lumber and debris everywhere.

"Unfortunately for the Leus, justice doesn't move at NASCAR pace," Hodges said.