Judge upholds firing of official who ordered wall removed near border

seattle -- A federal judge Friday upheld President Bush’s firing of a border official who tried to force a retired Washington state couple to tear down a retaining wall behind their home along the U.S.-Canadian border.

Border official Dennis Schornack, whom Bush fired in July, challenged the termination, arguing that the White House has no authority over the International Boundary Commission, or IBC, a binational treaty organization that maintains the U.S.-Canadian border.

“The general rule is that, under the appointments clause of the United States Constitution,” wrote U.S. District Judge Marsha J. Pechman, “the president can remove any officer whom he appoints.”

Schornack could not be reached for comment, and his attorney did not return phone calls.

Brian T. Hodges, attorney for the couple whose 4-foot-tall 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 [the couple] can go on with their lives.”

Herbert and Shirley-Ann Leu of Blaine, Wash., still face a battle over the legality of their wall. That case will probably not be heard until early next year, Hodges said.

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

The wall falls within the Leus’ property line, but the 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. 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 Shornack 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 for comment. Hodges, who belongs to the nonprofit Pacific Legal Foundation, which advocates for private-property rights, said the future of the property remained in limbo.

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

“Unfortunately for the Leus,” Hodges said, “justice doesn’t move at NASCAR pace.”

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tomas.alex.tizon@latimes.com