Sunday, June 16, 2024

Hearing held on Glacier National Park house while a lawsuit waits in the wings

Hungry Horse News | August 31, 2023 12:00 AM

The owners of a house in Glacier National Park made their case as to why it should be allowed to remain on the banks of McDonald Creek during a hearing last week in front of the Flathead Conservation Board and hearing officer Laurie Zeller.

Trent Baker, an attorney for John and Stacy Ambler, went over both Montana law and case law for nearly an hour, claiming the Conservation Board lacked jurisdiction over the house when it determined earlier this year that the home was in violation of the Montana Natural Streambed and Land Preservation Act, also known as the 310 Law.

The district told the couple in March they had until Nov. 1, 2023 to tear the house down and restore the bank. They also need to obtain a 310 permit to remove the home, which is framed in, but has no siding.

The hearing Friday was part of the appeals process to the board’s order.

The question of jurisdiction will not only be decided by the board — it also appears it will be decided in court. The Amblers, of San Diego, California, also filed suit against the Conservation District in April in Flathead County District Court.

That complaint hadn’t been served to the district and they were unaware of the suit until informed by the Hungry Horse News.

The suit also claims the Conservation District has no authority to order the home removed.

Baker’s argument, both in the suit and at the hearing, claims the district doesn’t have the authority to remove the home, because the state ceded its authority over private property in Glacier, with certain exceptions, when Glacier became a Park in 1910.

While Glacier does give the state and county some authority, such as regulating sewer and water systems in homes and allowing local fire departments authority to put out fires at private residences, the 310 law, specifically, is not mentioned, Baker argued, thus it does not apply.

“The United States has not authorized Montana or its political subdivisions to assert jurisdiction under the [310 law] or other regulatory authority over privately owned lands within Glacier National Park,” Baker claimed in the April suit.

He said the same thing at the hearing, noting in his rebuttal that the federal government did give the state and county some jurisdiction over private lands in Glacier, but “what you didn’t hear was agreement to impose the 310 law.”

Baker argued that if the state wants 310 jurisdiction in Glacier, it needs to have the law changed.

Attorneys for the district, in written comments in the case, point to a different interpretation of state law concerning jurisdiction over lands purchased by the federal government that reserves jurisdiction “in the enforcement of state laws relating to the duties of the department of livestock and the department of environmental quality and the enforcement of any regulations promulgated by the departments in accordance with the laws of the state.”

Baker argued that law doesn’t apply, because there is a separate state law that speaks directly to Glacier National Park.

In that law, section 2-1-205, the state is granted the right to tax persons and corporations in the park and to pursue people who have committed crimes and other outside the park, but are now inside its boundaries, among other things.

Once again, Baker argued, it does not specifically allow enforcement of the 310 law.

But members of the public spoke to the enabling legislation that created the park in 1910, which reads, in part, “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.”

Baker dismissed that argument as well, claiming it spoke to private property rights, not jurisdiction.

But the National Park Service over the years has deferred to the state, and even been fined by the state over previous water issues.

When there was flooding in 2006, for example, the National Park Service said it would forgo repairs to a bridge until it had the proper permits from the state, a member of the public noted.

In another related case, in May 2000 Glacier had a sewage spill in Lake McDonald after a main valve was left open. The National Park Service faced stiff fines from the state Department of Environmental Quality in the case for polluting state waters.

But in an odd twist, the two parties settled and Glacier National Park officials installed a $190,000 hydroelectic plant at Goat Haunt, near the Canada border, that replaced a propane-powered generator that was used to power the remote ranger station there.

At the hearing, the board also heard from Mike Sanctuary of Confluence Consulting of Bozeman. Sanctuary and surveyors from his company claim to have determined that the 100 year flood plain was just under the retaining wall of the home.

He also claimed, based on his studies, that the bank isn’t rapidly eroding toward the home “and hasn’t in the past 33 years.”

In addition he claimed the Amblers “did not excavate the stream bank” based on his analysis.

But Sanctuary’s analysis seems to ignore the concrete retaining wall the couple had installed into the bank in order to build the home in the first place.

The written testimony, however, paints a much different picture. For one, it shows National Park Service photos of previous homes hanging precariously over the banks of the creek after the Flood of 1964, which inundated McDonald Creek.

Longtime resident Monica Jungster recalled that flood.

“I watched McDonald Creek flow backwards into Lake McDonald,” she said.

She said it took out huge sections of the bank near where the Amblers house is now.

“The small parcel of land the [Amblers] now own is likely what is left of the private lot where Mrs. Powell’s house was hanging off the bank in 1964,” she said, noting the pictures that are part of the written record.

But Sanctuary largely dismissed that flood, noting it was a one in 1,529 year event, claiming there was just a 0.06% chance of having another one.

For its part, the board and its attorney, Camisha Sawtelle had little to say the hearing.

The district and its counsel still maintain they have jurisdiction and the case law to back them up. They also note that the 310 law doesn’t concern the high water mark, it concerns the streambank itself, which was clearly altered to build the home.

Glacier National Park, for its part, has stayed out of it, deferring to the state. Superintendent Dave Roemer previously told the Hungry Horse News that its jurisdiction begins below the high water mark in the matter.

Zeller, the hearing officer, now has 60 days to make a recommendation to the board. While the hearing went on for about two hours and 20 minutes, the written record and testimony from the public and others, fills volumes.

Once Zeller makes her recommendation, the board will make a final determination on the home.

If the Amblers disagree, they can then petition Flathead County District Court for a review of the matter within 30 days, which may be moot since they’ve already filed suit against the board.

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

In district court, Judge Robert Allison has been assigned the case.

The hearing was not without its emotion. Perhaps the most striking came from Cathy Dragonfly, a Native American who grew up playing on the banks of the creek as a child.

She said the house on the banks “hurts me to my heart.”

She said “I feel responsibility to represent my family and the Tribes,” in opposing the house.

“It’s very painful for me,” she said. “I haven’t worked through my grief.”