Lacking Federal Oversight, Attorneys Warn Private Property in Glacier Park Remains ‘Open to Unrestricted Development’

In the absence of federal regulatory oversight, state environmental protections should apply to private development in Glacier National Park, including the home a California couple is building without a permit along the banks of McDonald Creek near the park’s popular west entrance.

That’s according to attorneys for local stakeholders whose quest for accountability began more than two years ago, when the three-story, 2,178-square-foot home with two overhanging decks materialized amid a scenic panorama that attracts throngs of tourists each summer. The legal proceedings continued this week before a panel of appellate judges, setting the stage for the latest act in a legal drama involving the Flathead Conservation District (FCD) and a group of West Glacier residents, who first complained about the McDonald Creek construction project and the home’s out-of-state owners in early 2023.

The complaints prompted FCD officials and biologists with Montana Fish, Wildlife and Parks (FWP) to conduct a site inspection, leading to their discovery of an excavated, re-graded and retention-walled stream bank, as well as their determination that the property owners had violated the Montana Natural Streambed and Land Protection Act (NSLPA) — Montana’s foremost stream protection law, better known as the 310 law. FCD ordered the homeowners, John and Stacy Ambler, to remove the structure and remediate the streambank. The Amblers, in turn, sued the conservation district, swaying a federal judge in Missoula with their argument that FCD, a political subsidiary of the state Department of Natural Resources and Conservation (DNRC), lacked enforcement authority inside a national park.

“Glacier National Park allowed the construction and allowed the Amblers to connect to the Apgar Village water and sewer system,” the federal complaint from the plaintiffs states. “The Amblers dispute that the FCD has jurisdiction over the property and dispute that the NSLPA applies to the property.”

But neither the local conservation district nor the group of West Glacier residents who joined the lawsuit as intervenors is backing down from the brass-knuckle legal brawl. Instead, they doubled down on appeal, arguing in separate legal briefs that allowing the lower court’s decision to stand would set dangerous precedent for private development within the park’s boundaries, particularly given the absence of attendant federal policy.

At the heart of FCD’s argument is that the home’s location within the park’s boundaries does not preempt the enforcement of the NSLPA. In the absence of analogous federal law, FCD attorney Camisha Sawtelle said criteria surrounding the construction of a home on a private parcel girded by National Park Service land should default to the state law’s regulatory arm.

“Although it has legislative jurisdiction to do so, the National Park Service has not promulgated any federal regulations governing construction on streambanks on private inholdings, or requiring residences constructed on private land in Glacier National Park to comply with the Streambed Act,” Sawtelle wrote in a May 28 appeal brief to the U.S. Court of Appeals of the Ninth Circuit, noting that “regulations related to private inholdings in general are extremely limited.”

The case is unique given the project’s location inside Glacier National Park, which when established in 1910 trapped private tracts of land staked by homesteaders prior to the park’s existence. Originally totaling 13,000 acres, many of the homesteaders sold, or “ceded,” their property to the National Park Service a century ago, but some remain. Known as “inholding,” the bill establishing Glacier Park was explicit in its concession that landowners would retain “full use and enjoyment of their properties” and that “nothing herein contained shall affect any valid existing claim, location or entry under the land rules of the United States, or the rights of any such claimant.”

According to FCD’s interpretation, that means state law applies to the inholdings.

“The federal government has essentially abdicated this duty by failing to make and publish rules and regulations adequate for the care, protection and management of the resource on private inholdings in Glacier National Park,” Sawtelle wrote in her appeal brief on FCD’s behalf. “If, as the District Court held, the State of Montana is preempted from protecting their interests, the resource is not protected. This is in direct conflict with the public policy creating national parks. Due to failure of the federal government to regulate, existing state law has and should continue to protect the health of the resource.”

The Amblers, for their part, are required to respond within 30 days, with their answering brief due June 27.

The appeal to the Ninth Circuit seeks to reverse an order by U.S. Magistrate Judge Kathleen L. DeSoto, who in February 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. The Amblers say only Glacier National Park can govern private inholdings, stating the FCD “cannot unilaterally reassert jurisdiction over lands to which the State of Montana long ago ceded jurisdiction to the United States.”

“The only issue in this case is federal versus state jurisdiction over the Amblers’ property,” Trent Baker, the Amblers’ attorney, wrote in their motion for summary judgment, which asked DeSoto to rule in favor of the couple and resolve the jurisdictional question without going to trial.

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 defendants wrote in their appeal briefs that DeSoto misinterpreted those ceding statutes, arguing that when Congress created Glacier National Park in 1910, it reserved and withdrew the land “from settlement, occupancy or disposal under the laws of the United States” and dedicated them “as a public park or pleasure ground for the benefit and enjoyment of the people of the United States under the name of ‘The Glacier National Park.’”

In doing so, it expressly excluded property held in private ownership prior to the park’s creation.

“And because private inholdings were specifically excluded from the definition of ‘the Glacier National Park,’ the federal government does not have exclusive legislative jurisdiction,” according Rob Farris-Olsen, the attorney representing the group of intervenors, called Friends of Montana’s Streams and Rivers (FMSR).

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.

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