Inholders file suit against Conservation District

The owners of a house along the banks of McDonald Creek in Glacier National Park have filed an amended complaint in Flathead County District Court challenging the Flathead Conservation District’s recent ruling that the house be removed by April 1.

John and Stacy Ambler were found to have illegally built the house under the Montana Natural Streambed and Land Preservation Act by the district earlier this year. The Act is also known as the 310 law and in order to disturb a streambank in Montana or do work near a stream, a private landowner first needs to get approval from its local Conservation District and obtain a 310 permit.

The Amblers never did that.

In the suit, the Amblers claim they were given the OK to build the house in Apgar on May 13, 2019 when Flathead County planning office told them in writing they could do “whatever they want with the land without restriction,” as the land is unzoned.

The Amblers went ahead and poured a concrete wall into the bank of the stream and then backfilled it in order to build the home, which is on a lot that’s about 2,300 square feet in Apgar.

Prior to the wall, the bank dropped steeply down to the creek itself.

The property is what’s known as an inholding — private land that predates the creation of the park in 1910. The Amblers plot was established as part of a subdivision of Apgar created in 1908.

The Conservation District, responding to complaints from residents, did an investigation of the home late last winter. By then, it was framed in and sided. They found it violated the 310 law and ordered it taken down by Nov. 1.

But under the 310 law, the Amblers could appeal that decision and they did so, making their case in August to hearing officer Laurie Zeller, the former Bureau Chief of the Montana State Department of Natural Resources and Conservation.

The Amblers’ attorney Trent Baker argued the Conservation District had no jurisdiction in the case because the state ceded its authority when the area became a national park in 1910.

But Zeller rejected that argument, noting that Glacier’s enabling legislation specifically allows claims made prior to it becoming a national park.

"Nothing herein contained shall affect any valid claim, location, or entry existing under the land laws of the United States before May 11, 1910, or the rights of any such claimant, locator, or entryman to the full use and enjoyment of his land,” the legislation that created the park states.

“Petitioners’ property was a valid claim existing before 1910. This language undermines petitioner’s contention Glacier National Park has exclusive jurisdiction over private property because the private property rights were reserved and not definitively ceded in the 1910 Act,” Zeller found.

Zeller found the Conservation District did have jurisdiction and presented her findings in the case in mid-November to the district board.

The District, in turn, once again ordered the house be removed, this time by April 1, 2024.

But the case is far from over. The Streambed Act also allows the Amblers to appeal Zeller’s ruling to the district court, and they have done so.

The case has been assigned to Judge Robert Allison, who has heard many land use cases over the years.

In the amended complaint, the Amblers have changed their legal tactics a bit. They now claim they haven’t been afforded due process and their private property rights are being violated because they weren’t given adequate time to fully make their case.

They claim the Conservation District is treating them differently than other landowners, a violation of equal protection clauses of the Montana State Constitution.

Camisha Sawtelle, an attorney for the Conservation District, declined to comment on the suit.

It could easily be months, if not longer before Allison rules on the case.

If Allison doesn’t rule in the Amblers’ favor, the Amblers can appeal to the Montana Supreme Court.