Conservation District Orders Cease and Desist on McDonald Creek Home

The Flathead Conservation District’s Board of Supervisors on April 10 approved a cease-and-desist order suspending further work on a three-story home under construction on private property along Glacier National Park’s McDonald Creek. Although the homeowners had already halted construction, the order places an enforceable moratorium on future work until the conclusion of a declaratory ruling process that could span up to eight months.

“The power of the order is that if they do keep doing the work, then the [Board of Supervisors] has the ability to ask a court to enforce the order,” according to Camisha Sawtelle, an attorney representing the Flathead Conservation District (FCD) in the case.

The supervisors also agreed that their determination last month that property owners John and Stacy Ambler, of San Diego, Calif., were constructing the home illegally and without a valid 310 streambed permit is a matter of public interest, a requisite procedural bar established under the conservation district’s adopted rules. According to those rules, the district’s supervisors must also appoint a hearing officer to conduct the proceedings, which will ultimately help determine the fate of the Amblers’ private home under construction on a public waterway tracking through a national park.

The hearing officer must be selected before May 3. The appointment is entirely up to the discretion of the board of supervisors, which can select one of its own members to oversee the hearing. However, typically the position is filled by the stream permitting coordinator for the Montana Department of Natural Resources and Conservation (DNRC).

“As the 310 permit officer for the state, I am at your disposal,” Hailey Graf of the DNRC told the supervisors at their Monday evening meeting, explaining that if a volunteer board member were to assume the role the extensive work would not be compensated. “Since the DNRC has hired someone in my role, that person has typically served as the hearing officer in these cases. That is the way it’s been for the past decade or so. That said, there are other qualified candidates out there and it is entirely up to the discretion of the supervisors. But I would recommend it not be a supervisor simply because of the amount of time this it is going to take. It’s going to be a huge workload for probably the next six to eight months.”

Further complicating the matter is a competing timeline set in motion last month when the board of supervisors ordered the Amblers to remove their home and restore and revegetate the damaged streambank prior to Nov. 1. Not only must the work occur after high water, according to the supervisors’ 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. Under the 1975 statute, any private individual or entity proposing work in or near a stream that “physically alters or modifies the bed or immediate banks of a perennial-flowing stream” must first obtain an approved permit from the local conservation district.

This case is unique given the project’s location inside a national park, and the Amblers have challenged the Flathead Conservation District’s jurisdictional authority even as they remain beholden to its rules as well as its order for corrective action.

“There is another layer to the question of how to proceed, because there is a timeline here,” Samantha Tappenbeck, the FCD’s resource conservationist, said at the meeting. “They have a deadline for that corrective action to take place by November 1. To remediate the violation, they need a 310 permit to be in place. That takes time. So, they need to know, as we proceed with a declaratory ruling, do they need to start the process of applying for a 310 permit to cover their bases so that if it does not go their way in the declaratory ruling process, they’re prepared to remediate the violation?”

The question remained unanswered at the conclusion of the April 10 meeting, with Graf recommending that legal counsel review the FCD’s options prior to the supervisors’ next meeting on April 24.

Meanwhile, the fate of the Amblers’ dream home in Glacier National Park has been relegated to a procedural purgatory, despite the California couple’s claims that they took steps to ensure they were meeting all regulatory requirements prior to purchasing the property in 2019, and well in advance of breaking ground.

“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 couple’s petition for a declaratory ruling states.

The Amblers were found to be in violation of the 310 law at a public hearing on March 13, when the supervisors reviewed and discussed 17 complaints submitted by neighbors and nearby residents. Two weeks earlier, on Feb. 27, an onsite inspection of the house performed by the district’s 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.

Central to the declaratory hearing is the Amblers’ right to submit for the hearing officer’s consideration any data and information in support of their petition, a right shared by members of the public.

FCD Supervisor Gordon Ash said he anticipates a substantial volume of data and information entering the record given the case’s high-profile nature.

“There’s still questions of how the [county] planning board missed the Board of Supervisors as somebody critically responsible for inspecting and authorizing this type of activity,” Ash said.

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.

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.

Baker has submitted a request for two hearings: one to determine jurisdiction and one to dispute the violations.

“There is nothing preventing the Board from holding two hearings,” Sawtelle informed the supervisors, who will resume their consideration of the case on April 24.