fbpx
Glacier Park

Clock Ticking for McDonald Creek Homeowners to Dispute Conservation District’s Demolition Decision

The California couple building a home in Glacier National Park without a valid environmental permit must either seek a declaratory judgment by April 3 or apply for the permit to remove the structure and restore the damaged streambank

By Tristan Scott
A home under construction on private acreage along McDonald Creek near Apgar Village inside Glacier National Park. Courtesy Flathead Conservation District

Whether a private individual is breaking up a beaver dam or building a house, the 1975 Montana Natural Streambed and Land Preservation Act is clear: If the work physically alters a perennial-flowing stream, it must first be approved by the local conservation district.

Failure to gain that approval through what’s commonly called a “310 permit” is what’s ensnared John and Stacy Ambler in a nightmare that could end with the demolition of their dream home. That’s because the Amblers built their three-story structure on a sliver of private land abutting Lower McDonald Creek in Glacier National Park, where county zoning regulations don’t apply — but the requirements of the 1975 statute do.

Earlier this month, the Flathead Conservation District’s (FCD) Board of Supervisors determined that the Amblers built their home without a valid 310 permit in violation of the Montana Natural Streambed and Land Preservation Act. To correct the violation, the supervisors ordered the Amblers to remove the structure before Nov. 1, and to restore and revegetate the damaged streambank. Not only must the work occur after high water, according to an order for corrective action, but a 310 permit must be obtained prior to beginning both the demolition work and the streambank restoration.

In a 3-2 vote on the evening of March 27, the FCD’s Board of Supervisors set an April 3 deadline for the Amblers to either apply for a 310 permit to perform the disassembly of their home or submit a petition for declaratory judgment, a procedure that allows an individual who disagrees with the supervisors’ ruling to dispute the findings or challenge their jurisdiction.

A 310 permit is named after the Montana Senate bill that led to the creation of the Natural Streambed and Land Preservation Act of 1975, commonly referred to as the 310 law.

There are no costs associated with applying for a 310 permit.

Although this case is unique given the project’s location inside a national park, case law appears to support the Flathead Conservation District’s jurisdictional authority, according to FCD Resource Conservationist Samantha Tappenbeck.

Civil penalties and fines may apply if the Amblers are not responsive to the order for corrective action, in which case the FCD could issue a cease-and-desist order. However, according to the FCD’s adopted rules for implementing the 310 law, a violator who disagrees with the supervisors’ determination can petition the board for a declaratory judgment and, in doing so, submit data and information to support their case.

Trent Baker, of Datsopoulos, MacDonald & Lind, a Missoula-based law firm representing the Amblers, said his clients have hired an environmental consultant to gather data and information relevant to their petition for declaratory judgment. However, much of the technical data cannot be obtained until spring runoff begins and the streambanks are more accessible, Baker said.

“One of the issues here for the Amblers is that no one has produced the data necessary for them to conclude or make decisions with respect to their agreement or disagreement with the conservation district’s determination of jurisdiction,” Baker said. “There is very little existing data related to stream flows or mean high-water levels, and as the district knows there is no floodplain map so there’s no designation of what the 100-year floodplain is. And that is information that the Amblers want to gather before making that decision, and they would like to have the time to do that. They have obtained a consultant, but the work is difficult to do while ice and snow remains on the bank.”

Although two FCD supervisors said they understood and agreed with the request for additional time, they were outvoted when three other supervisors explained that the process for a declaratory ruling allows 60 days between the filing of a petition and a scheduled hearing, which they said is ample time for the Amblers’ consultant to gather the data under more suitable stream conditions. The FCD’s adopted rules do not explicitly set a filing deadline for a declaratory-judgment petition.

The Amblers were found to be in violation of the 310 law during a public hearing on March 13, when the FCD Board of Supervisors reviewed and discussed 17 complaints brought by West Glacier residents. Two weeks earlier, on Feb. 27, an onsite inspection of the house performed by FCD supervisors, as well as a representative of Montana Fish, Wildlife and Parks, revealed that the couple’s house was indeed under construction and that the McDonald Creek streambank had been excavated to create a pad for the home’s construction.

The Amblers, of San Diego, Calif., explained in an email to the FCD that they purchased the parcel in 2019 but have been visiting Glacier National Park for more than four decades, spending summers at a family cabin located at Kelly’s Camp on Lake McDonald, an historic district where a number of private holdings pre-date the park’s creation.

“We understand the majesty and history of Glacier National Park and we respect this special place,” according to a letter to the Flathead Conservation District Board of Supervisors signed by the Amblers.

In the letter, the Amblers said they purchased the lot on Lower McDonald Creek in 2019 and “spent numerous hours both researching the history of our parcel and trying to figure out which permits we would need in order to proceed with our build.”

“We spoke to several people at multiple departments in Flathead County and were always told the same thing: The County has no jurisdiction on private land in Glacier National Park,” the letter states. “In May 2022 we were able to hook into the sewer and water in Apgar through Glacier. We had numerous conversations with the Park about permits that they might require and there were none. This build has been completely visible to the Park and we’ve kept them in the loop as to our plans. We have adhered to all their guidelines. In no way was it a ‘fast build’ that has not been properly planned, as some have surmised.”

“Upon receiving the initial complaint, we decided to fly in right away to address the problem,” the letter continues. “We would have applied for the 310 permit two years ago had we known we needed it. Unfortunately, we were never steered to your department.”

A 2019 email from a representative of the Flathead County Planning and Zoning Office to Stacy Ambler appears to confirm this version of events, stating that “we do not regulate the use of the land (or any un-zoned property).”

According to the Amblers’ letter, the property has been served by sewer and water available in Apgar since May 2022, the letter states.

“We knew this build may not please everyone as we understand change is not always welcome, but we do things the right way contrary,” the Amblers’ letter states.

If upon submitting a petition for a declaratory ruling, the Amblers are dissatisfied with the FCD’s Board of Supervisors’ response, they may seek a judicial ruling in district court. If they are dissatisfied with the lower court’s determination, they may then seek judicial review by an appeal to the Montana Supreme Court within sixty (60) days after entry of judgment in the district court.