Flathead Conservation District Appeals Ruling in Glacier Park Home Construction Case

The Flathead Conservation District (FCD) and a group of West Glacier residents have appealed a federal judge’s order that affirmed a California couple’s right to build a home without a permit on McDonald Creek in Glacier National Park. The couple, John and Stacy Ambler, sued the conservation district after its board of supervisors determined the home was built in violation of Montana’s foremost stream protection law.

A federal judge last month ruled in favor of the Amblers’ argument that FCD lacked enforcement authority inside Glacier National Park, raising the profile of jurisdictional ambiguities that appear to allow the construction of a home in a national park in Montana without any regulation or oversight.

Friends of Montana Streams and Rivers (FMSR), a grassroots group of West Glacier and Apgar residents who joined the lawsuit as intervenors in the case, also submitted an appeal to the U.S. Court of Appeals of the Ninth Circuit, which opened both cases on March 7. Opening briefs in the appeal are due May 28.

The Amblers, meanwhile, have filed court motions seeking reimbursement for more than 300 hours in attorneys’ fees, amounting to $80,986.50. Both sets of defendants submitted briefs opposing the reimbursement of any attorneys’ fees, with FCD saying the Amblers are not entitled to recoup the costs of a lawsuit they filed.

“FCD has a history of granting … permits to parties doing work in Glacier National Park and other federal lands. These examples supported the FCD’s position that they had jurisdiction over the Ambler Property,” according to court papers filed by FCD’s attorney, Camisha Sawtelle. “Contrary to Plaintiffs’ assertion, FCD followed all laws and regulations to the best of their knowledge and treated the Amblers as they would any other citizen with a project on the immediate banks of a perennial stream in Montana.”

Moreover, the FCD said its inspection team was merely doing its job when, following complaints by local residents as well as from a park fisheries biologist, it conducted a site inspection of the home under construction on McDonald Creek.

“The bank had been excavated to create a pad on which to build the house. The pad area had been stabilized with a rock retaining wall on the stream channel side of the property,” according to court briefs submitted by FCD. “Based on the blatant disregard for the impact of the project on the health and stability of the riparian zone and McDonald Creek, the inspection team unanimously determined the Ambler project was a violation of the Act.”

The appeals to the Ninth Circuit seek to reverse an order by U.S. Magistrate Judge Kathleen L. DeSoto, who on Feb. 5 granted the Amblers’ motion for summary judgment in the legal dispute, ruling they built the home legally and that the conservation district lacks jurisdictional authority to enforce state environmental protection laws within the boundary of a national park.

For the Amblers, the order signaled a hard-fought victory even as it raises questions about which entity, if not the state of Montana, holds jurisdictional authority over property owners who choose to develop a scarce inventory of private parcels located within the boundaries of Glacier National Park. According to the Amblers, neither Flathead County nor Glacier National Park required any permits to begin construction on the property and connect the residence to the Apgar Village water and sewer system.

“The County advised that they do not regulate or restrict the use of the land and no building permit was needed,” according to court briefs submitted by the Amblers’ attorney, Trent Baker of Datsopoulos, MacDonald & Lind in Missoula. “Glacier National Park was also aware of the Amblers’ construction plans and did not issue or require a permit but authorized the Amblers to connect their home to the Apgar Village water and sewer system.”

The case began when residents in the West Glacier area complained about the Amblers’ construction project, clearly visible to park visitors and neighbors, which prompted FCD to conduct a site inspection. Following the inspection, FCD determined the Amblers had violated the Montana Natural Streambed and Land Protection Act (NSLPA), better known as the 310 law.

The FCD ruled that the Amblers must remove the home and remediate the streambed. However, 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 hearing officer Laurie Zeller, a retired bureau chief with the Montana Department of Natural Resources and Conservation (DNRC).

After reaffirming its jurisdictional authority, Zeller remanded the case back to the FCD, whose Board of Supervisors ruled that the couple must remove the home and repair the streambed no later than April 1, 2024. Instead, the Amblers filed lawsuits in state and federal courts, arguing that the FCD overstepped its authority by ordering the home’s removal. As the legal saga drags on, the unfinished home remains visible to onlookers from the Camas Road.

The question at the center of the case is whether FCD has jurisdiction to enforce the 310 law, which states that 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. The defendants contend that even if the private parcel is under exclusive jurisdiction of the federal government, the construction of a home on the immediate bank of a perennial stream without a permit constitutes a nuisance under federal law, violates the National Environmental Policy Act, and violates a federal statute providing that “no permit, license, lease or other authorization” shall be granted for the erection and maintenance of summer homes or cottages within Glacier National Park.

They also argue that state entities have jurisdiction to enforce the Streambed Act on private inholdings because the statute is consistent with the purpose for which Glacier National Park was created.

“It’s my understanding that you cannot construct anything within a national park without a permit, and there were no permits granted in the case,” Rob Farris-Olsen, an attorney representing the intervenors, said after reviewing the order last month. “If the park has exclusive jurisdiction, I don’t know why it didn’t require a permit for the construction of the Amblers’ house. Right now it seems like there’s no real regulation over those private inholdings.”

The absence of any real regulation over private inholdings means that the Amblers’ partially completed three-story home, the construction of which the FCD’s board of supervisors placed under a cease-and-desist order in April 2023, exists in a sort of jurisdictional limbo and can remain.

In order for the defendants to succeed on appeal, the Ninth Circuit would have to reverse the logic it applied in a 1968 water rights case, Macomber v. Bose, in which it determined that Montana ceded, and the United States accepted, exclusive jurisdiction over privately owned land located within the boundaries of Glacier National Park.

“The only issue in this case is federal versus state jurisdiction over the Amblers’ property,” according to Baker, the Amblers’ attorney.

In formulating an argument for why they should be reimbursed for attorneys’ fees, Baker described the difficult choice the couple faced when pitching their legal battle.

“At the onset of this dispute, the Amblers confronted a Hobson’s choice: acquiesce to the FCD’s wrongful assertion of jurisdiction and tear down their newly constructed home, or fight the FCD in the administrative proceeding and this action,” according to Baker’s motion for reimbursement. “They were forced into nearly two years of litigation and incurred substantial legal fees against a more powerful governmental entity that was funded in part by the Amblers’ own tax dollars and was wholly unwilling to acknowledge its clear lack of jurisdiction over the Ambler Property. The Amblers also had to endure the stress and uncertainty of potentially losing their home, along with the negative press and backlash from the Flathead community. This dispute was resolved by longstanding Montana and federal statutes and case law, including the clear and binding precedent which the FCD knew or should have known of at the outset of the dispute.”

For its part, FCD maintains that excavating a stream bank to build a home is a clear violation of the 310 law, and they “acted in good faith and appropriately when they upheld their duties in service of the people of Montana in reasonably assuming jurisdiction over the project on the Ambler Property.”

“They had no ‘desire’ to eliminate the Ambler home but rather fulfilled their duty to the citizens of Montana to administer the [Montana Natural Streambed and Land Protection Act],” according to FCD’s court brief.

[email protected]