The California couple building a home on the banks of McDonald Creek in Glacier National Park will appeal a jurisdictional ruling that their private home construction project was subject to Montana’s nearly half-century old streambed laws, challenging an arbiter’s finding that it was built without approval and must be demolished.
The decision was handed down Monday by hearing officer Laurie Zeller, a retired bureau chief with the Montana Department of Natural Resources and Conservation (DNRC) who was appointed by the Flathead Conservation District to arbitrate a dispute over whether John and Stacey Ambler built their three-story home on private property along McDonald Creek without the proper permit.
Zeller announced her decision during the Flathead Conservation District’s (FCD) Nov. 13 meeting, remanding the case back to the FCD’s Board of Supervisors, which in a unanimous vote ruled that the Amblers must remove the home and remediate the streambed no later than April 1, 2024.
Trent Baker, of Datsopoulos, MacDonald & Lind, a Missoula-based law firm representing the Amblers, said his clients intended to further litigate the matter by appealing Zeller’s decision and seeking a judicial ruling in district court. If they are dissatisfied with that lower court’s determination, they may then seek judicial review through an appeal to the Montana Supreme Court.
“I think we are going to have to litigate this jurisdictional issue first,” Baker told the Board of Supervisors during the meeting, which the attorney joined by Zoom. He explained that the Amblers had already filed a civil complaint against the Flathead Conservation District, which he intended to amend and have served immediately.
“Our intent is to amend that complaint and serve it on the district and exercise [the Amblers’] right to judicial review with regard to that jurisdiction,” Baker said.
Given the couple’s decision to appeal, it’s unclear whether the demolition project — which requires the Amblers to apply for and receive a permit and to minimize further impacts to McDonald Creek — will occur by April 1.
The saga over the legality of the McDonald Creek property began in March, when 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 1975 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 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.
Although the Amblers admitted that they did not obtain an approved permit, they claimed they took steps to ensure they were meeting all regulatory requirements prior to purchasing the 0.05-acre, 2,309-square-foot parcel in 2019. The couple challenged the FCD’s jurisdictional authority in the case and proceeded to what’s called a declaratory ruling process, which was overseen by Zeller.
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 Zeller, who acknowledged the case’s complexity.
Despite the Amblers making “a pretty compelling case,” Zeller said her final analysis is that the streambed law applies to the Amblers and the Flathead Conservation District exercised proper enforcement authority when it ordered the structure be removed.
“I believe that everyone who is building on or near a perennial-flowing stream in the state of Montana is subject to that law,” Zeller said. “I believe that the house is within the definition of a perennial-flowing stream, I believe it has a permanent impact and I think as such it requires review.”
Zeller further stated that some of the impacts are continuing, including erosion to the banks of McDonald Creek, and that “those impacts are going to continue” throughout the appeals project.
Zeller said the Amblers’ assertion that the property was subject to federal and not state jurisdiction was incorrect by her analysis.
“This particular project involves a private individual on private land pursuing a private project, so there’s no federal nexus to this particular project,” Zeller said. “In fact some of the information in the record shows that the federal government was not taking jurisdiction.”
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.”
Stay Connected with the Daily Roundup.
Sign up for our newsletter and get the best of the Beacon delivered every day to your inbox.