A federal judge has rejected a motion to settle a lawsuit on terms favorable to Herbert and Shirley-Ann Leu, the Blaine couple that built...
A federal judge has rejected a motion to settle a lawsuit on terms favorable to Herbert and Shirley-Ann Leu, the Blaine couple that built a retaining wall in their backyard along the U.S.-Canada border.
The ruling by U.S. District Judge Marsha Pechman means that the couple still don’t know if their wall will be allowed to stand. A snarl of legal issues that emerged from that case must still be decided by the 9th U.S. Circuit Court of Appeals, Pechman said.
The case began in 2007, after the Leus built the 4-foot-high wall to prevent their backyard from eroding into the ditch that runs along the border.
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That project got them a personal visit from U.S. Boundary Commissioner Dennis Schornack, who ordered them to remove the wall.
The Leus, thanks to free legal help from the Pacific Legal Foundation, sued the International Boundary Commission in U.S. District Court, challenging Schornack’s authority.
The episode drew national attention in July 2007, when the Bush administration fired Schornack — a White House appointee — because Schornack refused to agree to a settlement that would have conceded the Leus’ right to keep the wall.
Schornack insisted that the terms of a 1925 U.S.-Canada boundary treaty gave him the legal obligation to order the removal of the wall because it encroached into the clear zone known as a “boundary vista” that extends 10 feet on either side of the boundary.
Besides the Leus on one side and the boundary commission on the other, the lawsuit now involves Schornack.
He became the third party in the case after his attorneys filed legal documents contending the White House had no legal right to remove him as boundary commissioner.
Schornack also contends the Justice Department has no right to approve a legal settlement that, in his view, violates the boundary treaty.
In an earlier ruling, Pechman upheld Schornack’s firing, but she agreed to put the case on hold while Schornack and his attorneys appealed the matter to the San Francisco-based 9th Circuit.
In an order issued Feb. 27, Pechman slapped down the U.S. Justice Department’s attempt to settle the case with the Leus and allow them to keep their wall, before the 9th Circuit reviews Schornack’s arguments.
“Commissioner Schornack notes that he was not a party to the settlement and asserts the proposed settlement would violate the Treaty of 1925,” Pechman wrote. “The parties have simply not explained how this Court has jurisdiction to dismiss the case.”
In an e-mail, Schornack said he hopes the Obama administration may reject Bush policy on the boundary treaty and uphold Schornack’s stringent interpretation.