Monday, July 30, 2007
Just got back from Law and Society in Berlin, which was great. It was nice to meet a bunch of PropertyProf readers in person.
In Washington State, a dispute over a homeowner's garden wall has ballooned into a big federal lawsuit. It's stirred up a fight over private property rights versus international border security. And as NPR's Martin Kaste reports, the case even touches on the limits of presidential power.
MARTIN KASTE: Herbert Liu is a quiet Chinese American from Hawaii. But he and his wife recently moved to Washington State to build their retirement home close to the Canadian border, very close to the border.
Mr. LIU: Right now we are standing on the 49th Parallel.
KASTE: This road here?
Mr. LIU: Yeah.
KASTE: So these cars are driving down the road in Canada.
Mr. LIU: Yeah.
KASTE: I mean, I could reach out and touch them.
Mr. LIU: Yes.
KASTE: There's nothing separating the U.S. and Canada here - no fence, no hedge, not even much of a shoulder on that Canadian road. In fact, the main way to spot the border is by the fact that it's supposed to be kept clear of obstructions. There are no trees or structures allowed within 10 feet of the boundary line. It's something Liu found out the hard way when he built a retaining wall that jutted three feet inside that buffer zone.
Mr. LIU: The Boundary Commission stopped us and said to tear the wall down. They gave us 45 days to tear the wall down or they would come and tear it down themselves.
KASTE: Liu had never even heard of the International Boundary Commission. It's the bi-national entity that's in charge of marking the border. So he sued to keep his wall with the help of the Pacific Legal Foundation, a conservative group funded in part by property developers. Lawyer Brian Hodges says the International Boundary Commission overstepped its authority when it threatened to tear down Liu's wall.
Mr. BRIAN HODGES (Lawyer): If an international organization can come in and unilaterally expand the scope of its power to include the regulation of private affairs, then you're not safe. And I don't want to sound like an alarmist, but that's the truth.
KASTE: Soon the Bush administration weighed in on Liu's side. It fired the American representative on the Boundary Commission, Dennis Schornack, after he insisted that the wall be moved back. But Schornack isn't going quietly. His lawyer, Elliot Feldman, says the president can't fire him.
Mr. ELLIOT FELDMAN (Lawyer): The commissioner is appointed by the president, but he doesn't serve the president. He didn't take his oath to the president for this appointment. He took the oath to the treaty.
KASTE: Feldman accuses the administration of letting the ideology of property rights trump the needs of border security.
Mr. FELDMAN: If this were permitted, there would be no principled basis for stopping anybody else from doing the same thing. So you would have no visible border anymore and the RCMP on one side and the U.S. border patrol in the other wouldn't be able to police the border, wouldn't be able to patrol it.
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