In inholder case, a question of jurisdiction arises

The case of a private home built along the shores of lower McDonald Creek in Glacier National Park could come down to jurisdiction.

Attorneys for John and Stacy Ambler claim the state doesn’t have jurisdiction, while attorneys for the Flathead Conservation District say it does.

The conservation district board earlier this year found that the Amblers, of San Diego, California, built the home in violation of Montana Natural Streambed and Land Preservation Act, also known as the 310 law.

It ordered the Amblers to remove the home by Nov. 1. The home is framed out and has two decks, but no siding. Work on it has ceased after the board earlier this month ordered the Amblers to stop construction.

On March 9, Camisha Sawtelle, an attorney for the conservation district, found the district was within its rights to order the house removed.

“I found no information on a specific act of Congress pre-empting the regulation by the conservation district in Glacier National Park. In this case, this is actually private land. There are no covenants or regulations of record. This indicates this parcel should be treated as any other private parcel and is subject to the jurisdiction of the Act,” she told the board in an email.

The Amblers’ home is, in fact, private land in Glacier National Park. Commonly called inholdings, private parcels in Glacier pre-date the creation of the park in 1910.

Apgar, where the home is constructed, was subdivided years before Glacier became a national park. As such, it has several private lots and buildings.

The Amblers’ home, on a 2,300-square foot lot, is one of the latest to be built.

Trent Baker, the Amblers’ attorney, claims the state actually ceded exclusive jurisdiction over all land within Glacier National Park to the United States.

“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 boundary of the park is ceded to the United States,” Baker opines.

He noted, however, that the U.S. in Glacier has expressly authorized state and county regulations of sewer and water on inholdings in the park, but it has not expressly authorized regulation of inholdings under the 310 law.

Furthermore, the Amblers asked Flathead County if permits were needed in 2019 and they were told, in writing, that they needed none, Baker claimed.

The conservation district is separate, however, from the county planning office.

The Amblers have asked for a declaratory ruling in the case — the first step in a legal appeals process in the matter.

Under a declaratory ruling, the Amblers are allowed to present their case and the district, in turn, appoints a hearing officer, which may be one of the supervisors. A quorum of other supervisors must also be present.

The ruling itself —consisting of findings of fact and conclusions of law — must be made by a concurrence of a majority of the board. Only those supervisors present during the hearing can participate in the decision.

If the Amblers are unsatisfied with the ruling, they can then petition Flathead County District Court for a review of the matter within 30 days.

If they disagree with the ruling of the district court judge, they can appeal to the Montana Supreme Court within 60 days.

The legal wrangling could mean the home, which is largely built but has no siding, could remain along the banks of the pristine stream for months more, if not years.

The district board on Monday night decided to hold a special meeting May 3 at 2 p.m. to name a hearing officer in the matter. They postponed the decision because a lead candidate was traveling back to Montana from out-of-state.

The officer position is unpaid and will require considerable expertise, the board noted.