McDonald Creek Property Owners Seek Ruling Over Validity of Home Build

John and Stacy Ambler say a decision requiring removal of their three-story home under construction in Glacier National Park doesn’t apply to private inholdings

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

The California couple building a home on the banks of McDonald Creek in Glacier National Park says a state law requiring an environmental permit for the construction project doesn’t apply to their property, and they’re taking legal steps to dispute a local conservation district’s jurisdictional authority.

That’s according to an April 3 petition submitted by John and Stacy Ambler challenging the Flathead Conservation District’s determination last month that the couple must remove the structure by Nov. 1. According to the district’s decision, the couple began building their home without a valid environmental permit required by the Montana Natural Streambed and Land Preservation Act (NSLPA).

The Amblers disagree, stating in their petition that Montana ceded jurisdiction over all land within Glacier National Park, thereby exempting their property from the state law.

“Courts hold that if a state cedes jurisdiction for a national park without retaining jurisdiction over private inholdings, then general legislative jurisdiction for all land, public and private, within the boundaries of the park is ceded to the United States,” the petition states. “The United States can make exceptions and has expressly authorized state and county regulation of water and sewer systems on privately owned lands within Glacier National Park. The United States has not authorized regulation of inholdings under the NSLPA.”

The Amblers, through their attorney, have also requested additional time for an environmental consultant to survey McDonald Creek’s stream flows and calculate the elevation of its ordinary high-water mark, where Glacier National Park’s jurisdiction begins, as well as its floodplain — information that will figure into a jurisdictional debate over whether the NSLPA applies to their acreage. Moreover, the petition says the Flathead Conservation District may issue a permit even after construction has begun “for projects on the banks of streams within their jurisdiction.”

The petition further states that the couple, who has long family ties to Glacier National Park, took steps to determine what permits, if any, were required for them to build on a sliver of acreage on the banks of Lower McDonald Creek near Apgar Village.

“The Amblers contacted Flathead County in 2019 about building on their property and were advised in writing that no permits were needed. The Amblers notified Glacier National Park of their intent to build in 2021. Glacier National Park did not require any permits and authorized the Amblers to connect their residence to the Apgar Village water and sewer system,” the petition states.

According to Glacier Park Public Information Officer Gina Kerzman, the park informed the Amblers they needed to comply with state and county laws and regulations.

Property records reveal the Amblers purchased the 0.05-acre, 2,309-square-foot parcel in 2019, but John Ambler says his family has 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 “inholdings” pre-date the park’s creation.

Following a series of 17 complaints submitted by West Glacier residents, construction activity was halted on the three-story home before contractors had installed siding. As of April 2, the home’s windows appeared boarded up with plywood.

The procedural exchange is unfolding under the Flathead Conservation District’s adopted rules for a declaratory ruling, with the Amblers’ attorney Trent Baker, of Datsopoulos, MacDonald and Lind in Missoula, arguing that the district’s deadlines have not allowed his clients time to obtain or present the necessary data and information regarding jurisdictional authority.

“The Amblers have retained an experienced environmental consultant to obtain this information and the consultant has advised that this data should be obtained after the ice and snow is gone from McDonald Creek and its banks,” Baker wrote in his request for declaratory ruling. “This typically occurs by the end of May. Adequate time to gather and analyze relevant information and data is required under the NSLPA and the District’s Adopted Rules.”

A home under construction on private acreage along McDonald Creek near Apgar Village inside Glacier National Park. Tristan Scott | Flathead Beacon

The Flathead Conservation District’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. The Amblers filed their petition on April 3 and will appear for a hearing on April 10.

Last month, the Flathead Conservation District’s 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.

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.

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 the 17 complaints. 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.

Having received the Amblers’ petition for a declaratory ruling, the Flathead Conservation District has 30 days to appoint a hearing officer, or until May 3, according to its adopted rules. Within 30 days of that appointment, the district must set a date for a hearing to gather information and data, allow public comment. A quorum of the supervisors must be present at the hearing. The hearing officer shall make a recommendation to the supervisors for their approval and adoption within 60 days of the conclusion of the hearings process. The district may extend this time frame if necessary.

According to Samantha Tappenbeck, the Flathead Conservation District’s Resource Conservationist, the Board of Supervisors may or may not appoint a hearing officer at the April 10 meeting.

“I suspect the agenda item will involve a review of the petition for declaratory ruling, consideration of whether or not this matter constitutes significant public interest, and a discussion of the timeline and proceedings moving forward,” Tappenbeck stated in an email. “Flathead CD has been through declaratory rulings in the past, but it is does not happen frequently, so we want to keep the Board fully informed of the status and aware of relevant timelines for action.”

If the Amblers are dissatisfied with the response, they may seek a judicial ruling in a local 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 60 days after entry of judgment in the district court.