An appeal to the 9th U.S. Circuit Court of Appeals has been made in the case of a house built close to McDonald Creek in Glacier National Park/Rebecca Latson file

The future of a partially completed home built next to a creek in Glacier National Park in Montana remains uncertain, as a federal magistrate's ruling allowing the house to remain is being appealed to the 9th U.S. Circuit Court of Appeals.

While U.S. Magistrate Kathleen L. DeSoto in early February ruled in favor of the California couple that owned the structure built next to McDonald Creek near Apgar, John and Stacy Ambler of San Diego, that ruling centered on her finding that the Flathead Conservation District (FCD) had no legal authority to order the home demolished because the Amblers had not secured the necessary permits to build it next to the creek.

In her ruling, DeSoto noted that when Montana ceded the land to the federal government to create Glacier National Park, it also ceded authority over privately owned lands within the park.

While the conservation district had also argued that the construction violated the National Environmental Policy Act and other laws, the magistrate said those arguments were outside the issues raised by the Amblers' lawsuit that sought to overturn the conservation district's order.

"The sole issue before the Court is whether the FCD has jurisdiction to enforce the Streambed Act on the Ambler Property. FCD may be correct that the home the Amblers have built on their property is prohibited by federal law. But because these issues go beyond the scope of the narrow jurisdictional issue presented on summary judgment, the Court does not address FCD’s arguments," DeSoto held.

On March 5, Friends of Montana Streams and Rivers, which intervened in the case, filed notice that it would appeal the matter to the 9th Circuit. A copy of the court transcript was ordered to be delivered by April 18, with an opening brief from Montana Streams and Rivers due May 28, and an answering brief from the Amblers and the conservation district due June 27. 

The home was built on a private inholding in Glacier that once was part of a larger 182-acre tract Charles Howe acquired in 1908 near present-day Apgar on the west side of the park through the Homestead Act of 1862. While portions of the larger tract had been acquired over the years by the federal government, the Amblers' plot and some others have remained privately held.

When locals noticed that the home's construction had encroached onto McDonald Creek's streambed, they alerted the conservation district, which has the authority to interpret and enforce the Montana Natural Streambed and Land Preservation Act. That law strictly governs construction near sensitive waterways. As part of an investigation, FCD determined the Amblers never secured the necessary permits to build the home. The conservation district ordered the home torn down and instructed the Amblers to apply for proper permitting before attempting to rebuild.  

The Amblers last December sought a summary judgment ruling against FCD, maintaining that the federal government had exclusive jurisdiction over private property within the national park, except went it came to the state acting on civil or criminal matters within the park.