An appeal filed in the case of a home partially constructed on the banks of McDonald Creek in Glacier National Park argues that a lower federal court ruled in error and the decision leaves a regulatory void concerning private property within the park’s boundaries.

In February, U.S. Magistrate Kathleen DeSoto ruled in favor of John and Stacy Ambler of San Diego, California, the couple behind the home going up on a slice of private land on lower McDonald Creek in Apgar. 

The unfinished house sits on a parcel that is just 2,300 square feet and is part of a subdivision in Apgar that pre-dates the establishment of the park in 1910.

The Amblers bought the property, known as an inholding, in 2019 and the home took form in late 2022, pinned to the side of the steep bank by a concrete retaining wall.

Neighbors and concerned residents took note and filed a complaint with the Flathead Conservation District, which oversees and enforces the Montana Streambed Protection Act, also known as the 310 law after the permit that’s required to disturb any streambed in Montana.

The Amblers never obtained a permit. In March 2023, the Conservation District found the home in violation of the Streambed law and ordered it removed.

After more state hearings that upheld the Conservation District’s ruling, the Amblers filed suit in federal court claiming the state didn’t have jurisdiction over the property because Montana had ceded it shortly after the creation of the park in 1910. Furthermore, while some state laws apply to private lands in Glacier (of which there are numerous parcels, particularly along Lake McDonald) the streambed law does not, because it wasn’t passed until 1975, long after Glacier was established.

DeSoto, in essence, agreed and ruled against intervenors Friends of Montana Streams and Rivers and the Conservation District.

But the appeal filed recently to the Ninth Circuit Court of Appeals by Friends of Montana Streams and Rivers, a group of park advocates, claims that DeSoto ignored the plain language of the law that created the park and the subsequent state law that accepted cessation of state lands to the federal government.

In addition, the appeal notes that Flathead Electric Co-operative received 310 permits when it did borings under three streams to serve National Park Service properties in 2019.

In other words, the Park Service itself was deferring to the state streambed law for that project.

“This case is about protecting the integrity of Montana’s natural streams, not just about land use or jurisdiction. It is about whether Montana can enforce the Natural Streambed and Land Preservation Act to prevent the piecemeal destruction of streambanks like those of McDonald Creek. Construction on or adjacent to these waterways — especially on private property within a national park — poses serious environmental risks including erosion, sedimentation and long-term hydrological damage downstream. These risks are precisely why the Act requires local review and permitting,” argued Friends of Montana Streams and Rivers attorneys David K. Wilson and Robert Ferris-Olson in the appeal.

They claim the lower court simply erred when it found Glacier has jurisdiction over the Ambler home. Glacier has no regulations concerning building close to streams and waterways on private property; Park Superintendent David Roemer conceded as much when he previously told the Hungry Horse News that the federal jurisdiction in the Ambler case was at the high-water mark.

Still, the jurisdiction issue promises to be a large part of the case. DeSoto said as much in her original ruling earlier this year.

“In sum, the court concludes that the Conservation District lacks jurisdiction to enforce the Streambed Act on the Ambler property because Montana has ceded exclusive jurisdiction over all land within the boundaries of Glacier National Park — including private inholdings — to the federal government,” DeSoto ruled. “In reaching this conclusion, the court is bound by (a previous Ninth Circuit Court decision) which held that Montana’s cession of jurisdiction over Glacier National Park ‘included not only the public lands dedicated to park purposes by the United States but all privately owned lands within the described park boundaries,” and that ‘[b]y this cession and acceptance, federal authority became the only authority operating within the ceded areas.’” 

But Friends of Montana Streams and Rivers claim that previous circuit court ruling, which was over water rights, was also in error and should be overturned.

“At the time of cession (in 1914), Montana did not cede exclusive legislative jurisdiction over private inholding to the federal government. The plain language of the statutes reserved, at a minimum, concurrent legislative jurisdiction over those inholdings to the state of Montana. That concurrent jurisdiction is based on exclusion of private lands that were homesteaded prior to the creation of the park in 1910, including the Amblers’ property. 

“The istrict Court, and past court cases, misinterpreted this plain language exclusion to find that the exclusion only was meant to protect a homesteader’s right to take title to the land. Those conclusions are in conflict with subsequent congressional action. In 1946, for example, Congress authorized the secretary of the Interior to obtain title to private property within the boundaries of the park, but that such property was not subject to federal regulation until the title passed to the United States. This is consistent with National Park Service regulations that exclude inholdings from Park Service regulations. The District Court erred by concluding otherwise and relying on case law that did not address the cession statutes related to Glacier National Park,” Friends of Montana Streams and Rivers argued.

They also argue that the state had laws on the books protecting rivers and streams prior to Glacier becoming a park, well before the Streambed law was passed.

In essence, their argument goes, Montana has long had a vested interest in protecting its rivers, no matter where they flow.

The Amblers have a few weeks to file their briefs on the matter in support of their case.

Meanwhile, work on the house appears to be stopped. It has no siding. There is concern that the case could set precedent for other inholders in Glacier. For example, Apgar has other parcels that are privately owned along McDonald Creek, and along Lake McDonald itself, there are numerous privately-owned homes and parcels. There would be little regulation of them if the lower court ruling is upheld, unless Congress were to pass legislation to regulate inholdings and development of private property inside the park.