Published Tuesday, July 17, 2007, in Washington Times

Property-rights dispute

By Sonya D. Jones and John R. Lott Jr.

Retirees Shirley and Herbert Leu had a problem. Part of their backyard was collapsing into a ditch that ran along the U.S.-Canadian border. Before building their 4-foot-high retaining wall, the Leus made sure they were in compliance with all local regulations related to improvements made on private, residential property. It never dawned on the Leus that this would lead to an international incident and an ideological battle over private property. The debate became one of whether an international commission could simply come onto their property, remove their wall and then send them the bill.

The controversy escalated to soap opera proportions with the Departments of State and Justice as well as the White House opposing the International Boundary Commission's (IBC) edict and President Bush last week stepping in and firing the U.S. representative on the commission. Apparently, this is thefirst time that a president has ever fired such a commissioner.

For his part, the fired commissioner, Dennis Schornack, claims that once appointed he has the job for life and cannot be fired. He isvowing to fight his firing in court. The IBC claims authority to enter and take the Leus' private property under a treaty between the United States and Canada. According to Mr. Schornack and his Canadian counterpart, the treaty gave them absolute authority over a strip of land extending 10 feet on either side of the border.

To put it mildly, the Leus were shocked. After all, their retaining wall stands about 8 feet from the actual border andwell within their property line."[Mr. Schornack] was so rude, and soabrupt, standing and telling me he had the power to take the wall down and that if I got a lawyer, he'd win." Brian Hodges, theattorney representing the Leus, noted, "It's stranger than fiction. Commissioner Schornack'shardheaded approach unfortunately justifies people's worst fearsabout government."

The thought that an international commission could simply order the wall removed at the expense of the owners was beyond anything that the couple had anticipated.

To Mr. Schornack, the dispute is largely one of too much fealty to property rights. "I'm not an ideologue, and it seemed to me that I was being demanded to adopt the ideology of the Justice Department." He claims that the Justice Department lawyers "are on basically amission to pare back what they see as government intrusion intoprivate property." The problem? That treaty the IBC relies upon for its authority does not actually authorize the regulation of that 20-foot-wide zone. Even so, Mr. Schornack and the IBC set a deadline for the Leus to remove their retaining wall, otherwise the IBC would do it themselves.

Despite the fact that the IBC claims to be authorized to regulate and control the use of private property within the United States, Mr. Schornack and the IBC actually responded that they are not a government agency and are therefore not subject to the laws of the United States and its Constitution. The Justice Department asked to take over the case and negotiate a compromise that considers the couple's private property complaints. But the commission claimed that, as an international commission, it was not obligated to compromise on the issues.

Under normal circumstances, any government agency that has authority to regulate private property would provide some sort of notice whether that be in the form of notifying individual property owners of their subjective status, or even by filling a notice with local planning commissions to give notice when those property owners attempt to make improvements to their property. Obviously, neither was the case in this situation.

As a result, the Leus have been subjected to overreaching governmental regulation from a quasi-governmental agency with no apparent authority to regulate private property. Given that there exists 5,525 miles of U.S.-Canadian border, and national security is an ever-increasing concern, both private property owners and citizens alike should hold the government accountable for irresponsible exercises of authority over them.

While Americans have run into plenty of overreaching American bureaucracies, they seem destined to run into more of these international bureaucracies in coming years partly due to the differences in whether property rights should be protected. Unfortunately, while Americans debate among themselves whether property owners should be compensated for regulations that take away a property's value, even many of the most basic protections we take for granted are not recognized by other countries.

Sonya D. Jones is a lawyer with Pacific Legal Foundation. John R. Lott Jr. is a senior research scholar at the University of Maryland.


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