OBP006164

To: (b) (7)(E) , Director for Canadian Affairs, DHS

From: (b) (7)(E) , U.S. Boundary Commissioner

International Boundary Commission (U.S. and Canada)

Re: Boundary Vista Encroachment in Blaine, Washington, USA

Date: March 26, 2007

The purpose of this memo is to inform you, and others at DHS as you see fit, of recent
developments at the IBC, and to seek your continued support for the IBC and our mission
to maintain an effective boundary between the U.S. and Canada.

Attached are copies of: the Treaty of Washington (1925) under which the IBC works; the
Canadian Boundary Act; the 1908 Proclamation where Teddy Roosevelt reserved a 60-
foot wide federal “reservation” of land adjacent to the boundary where the land was not
privately owned in 1908 - this is most of the boundary west of the Mississippi with some
exceptions like the instant case of (b) (7)(E) ; and a copy of my recent letters to
(b) (7)(E) in Blaine, Washington with the link to our website where you can get
to the IBC’s policy of “no permanent construction” in two clicks. Finally, I have
attached some pictures of the encroachment, a detailed description and a map so you can
see what I’m talking about.

I have recently acquired the assistance of an experienced lawyer at the U.S. DOJ to
advise and assist on all matters legal and so believe them to be in good hands. At this
time, it appears that the lead will be handled in Washington D.C. with the state DA’s
office assisting as necessary.

I believe that there are policy matters concerning the boundary that DHS, and more
specifically, CBP should be made aware of; I am seeking your continued support and
collegial advice.
_______________

Background

Under our treaty, the IBC maps, marks, and maintains the boundary between the U.S. and
Canada. Most of our small budget is spent on maintaining a 20-foot wide (9.1 meters)
“boundary vista” through which the line runs, and one-man field offices in Maine,
Minnesota, and Montana. Temporary crews are hired during summer months to cut
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vegetation and repair, replace, or add to the 8,000 plus monument inventory along the
boundary. Currently, the U.S. deploys 3-4 crews, and Canada 6-7 crews per summer. As
you know, Ca increased its budget in 2004, and the U.S. has not, so 2/3 of the work is
done by Ca and 1/3 by the U.S.

It is IBC policy to keep the vista clear of all permanent obstructions, and while there are
some very specific exceptions, this has been IBC policy and practice for a century. This
“clear corridor” policy arises in the Treaty and in the U.S., the Proclamation. It has been
put into practice from coast to coast, including Alaska. The policy is also rooted in
boundary security (see the Proclamation) for the supportive function it performs.

In Canada, where treaties must be given effect through an act of Parliament, the law
enacting the Treaty was not passed until 1960. Among other things, the Canadian law
specifically defines the vista, the prohibition on permanent construction, and the ability of
the IBC to remove vista obstructions at the expense of the property owner. In Canada,
private construction built before the 1960 act was “grandfathered” into an exception to
this clear corridor policy.

In the U.S., there is no statutory enactment of Treaties, the Senate ratifies them, and there
is no statute specific to the boundary or the IBC. Rather, IBC policy is rooted in
Commission decisions recorded in meeting minutes and given effect by the Commission
through persuasion and the general willingness of private property owners to comply.
There have been few problems – maybe one every several years.

Unlike the federal reservation associated with the 1908 Proclamation, the IBC restriction
on obstructions of the boundary vista is not recorded in local property deeds. While
information about the restriction is readily available, information to private property
owners is mostly word of mouth, and from such owners or their agents being interested
and motivated to explore what the obvious presence of the boundary in their back yard
means to them as property owners.

The IBC does not have, nor it is required to have a database of every private property
adjoining the 5,525 mile boundary, and we have no way of communicating with these
people other than when our crews are in the area. We are not required to register our
“easement” with local deeds offices, and we are not required to communicate the
existence of this “easement” to property owners. It is incumbent upon the owner to
inquire to the IBC about restrictions on use.

The Blaine, Washington encroachment

(b) (7)(E) recently moved to Blaine, Washington from Hawaii. They are retired
and (b) (7) claims to be(b) (7)(E) Late last year, they hired a contractor to build a
(E)
reinforced concrete retaining wall that encroaches into the boundary vista some 2 and
one-half feet. The wall was intended to keep their back yard from washing away and is
to be fitted with a chain-link fence to provide a secure area for the expensive dogs they
breed. No inquiry was ever made to the IBC concerning the construction.
OBP006166

When the RCMP brought the encroachment to our attention, we dispatched the Canadian
field officer located in nearby Vancouver to inspect the situation. He took the pictures
and determined the wall encroached by some 2.5 feet. We sent a letter to the (b)
(7)
informing them of the policy and asking them to cease any further construction until we
could get back to them. It is the first time new construction has occurred in the vista in
maybe 20 or more years that we are aware of.

Since the IBC was planning to hold two public meetings in Vancouver in mid-February,
we decided to personally visit the property and deliver to the (b) our second letter
determining that the wall must be removed and asking that it (7)
be done in 45 days, or by
April 9, 2007. The letter noted that the IBC could remove the wall after the 45-day
period expired and could bill the (b) for the expense. We have subsequently informed
(7)
the (b) that they will not be charged for removal or disposal costs.
(7)
Of course the owners have appealed to the media who are eager to report the situation as
the little old lady versus the heartless bureaucrat. Some stories have been written, and I
suspect that when the day comes to tear down the wall, cameras will show up
immediately.

In anticipation of legal action, we have now acquired help from the U.S. DOJ. We are
considering a court order for removal, but will follow DOJ advice in this regard. While
there is no “case” yet, we are preparing for that contingency.

Implications for the Boundary

The IBC mission to maintain the boundary vista as a “clear corridor” – a 20-foot wide
swath cleared of brush, trees, and buildings - is, we believe, an important assist to DHS
and those whose job is border security. The 1908 Proclamation and treaties seem to be
predicated on this idea as well. If the ability to keep the boundary vista clear of
obstructions were to be challenged and lost, then the boundary could become overgrown
and unrecognizable, and private buildings could be erected right up to the boundary line.
I think you will agree that this would make security and even greater challenge.

The matter in Blain is the first known example of new, permanent construction
encroaching into the boundary vista in many, many years. The encroachment was
brought to IBC’s attention by Canadian RCMP officers. Upon inspection and survey by
an IBC field officer, it does indeed encroach by 2.5 feet and that would make it a
violation of IBC policy. However, as the picture shows, the road “Zero Avenue” in
Canada runs parallel to the boundary, thus creating a clear view, and there is a RCMP
camera mounted on a 75-foot pole about 100 yds west of the property.

Oddly enough, ten miles away across Boundary Bay, is Point Roberts, Washington where
the situation described for the (b) is exactly the opposite: the encroachment there is on
the Canadian side and the road(7)(Roosevelt Avenue) is on the U.S. side. There, buildings
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encroach to within 2 feet of the line, and the IBC granted an exception allowing it back in
the 1970’s, but for different reasons.

The most serious implication for the boundary would arise if the authority to keep the
vista cleared and clearly marked were to somehow be overturned. In this event, it would
no longer be possible to keep buildings away from the border line, and even the ability to
clear vegetative overgrowth could be lost. While this is the “worst case” scenario and it
is of low probability, the (b) matter brings some important issues into focus:
(7)

 The IBC has an unrecorded restriction on the use of private property.

While most people living on the boundary know about this restriction and
cooperate voluntarily, the IBC has no way to contact or inform property
owners of this restriction. I am considering getting the word out to title
companies.
 The IBC has an incomplete database of property owners adjoining the
boundary on both sides – the eastern half of the U.S. through the Great
Lakes is complete except for 70 miles on the North Line in Maine/New
Brunswick. The west is mostly a federal reservation with most of the
private in-holdings in the western 100 miles or so of Washington. Such a
database may be of use to DHS/CBP as well.
 IBC authority rests on the Treaty and Proclamation. While the
Proclamation’s 60-foot federal reservation is recorded in deeds, the 20-
foot restriction on use is not. In Canada, enforcement is built into their
Boundary Act; in the U.S. authority is treaty based.

How DHS could help IBC

As noted, legal matters are being handled by the U.S. DOJ. We will keep you apprised of
developments. One way DHS could help is to reaffirm the importance of a cleared and
clearly marked boundary vista to support border security. This could be done by way of
a letter, or by affidavit should the IBC need to go to federal district court.

My deputy and his Canadian colleague are meeting with staff in CBP’s regional offices in
Spokane and Swanton to discuss ways to cooperate (meeting report attached). For
example, BP agents might note encroachments, monument damage, or overgrown areas
in need of clearing when they are patrolling the boundary. When immediate work is
indicated, the IBC could also be engaged on a contractual basis to clear such areas. In
addition, we can offer cleared staging areas, helicopter landing areas, and room for boat
launches within the 60-foot Proclamation reservation if desired by BP. There are clearly
opportunities for mutual support and cooperation, and I would love to explore these
further. Indeed, we may want to discuss formalizing our relationship in a Memorandum
of Understanding between our two agencies.

Feel free to contact either myself (b) (7)(E) or (b) (7)(E) (b) (7)(E) for
further information.