Ninth Circuit rules state has no jurisdiction
The Ninth Circuit Court of Appeals upheld a lower court ruling in the case of a private home that was built on the bank of lower McDonald Creek in Glacier National Park, ruling the Flathead Conservation District has no jurisdiction in the matter.
The Conservation District previously found the house, owned by John and Stacy Ambler of California, was built in violation of the Montana Streambed Protection Act and at one point ordered the Amblers to removed the house.
The Conservation District and intervenors Friends of Montana Streams and Rivers, in turn, appealed the case to the Ninth Circuit.
“The Streambed Act is not assimilated into federal law as part of the same basic scheme in effect at the time of cession,” the higher court found in its April 15 ruling.
The District and the Friends group also argued the Streambed Act had a criminal enforcement element and should be considered as such.
But the higher court rejected that argument as well, noting the Act is largely regulatory and allows for permits for people and property owners working and building near Montana’s streams and rivers. The Amblers never did get a permit from the Conservation District to build the house, known as a 310 permit, which set off the entire case to begin with.
“The Streambed Act is not a criminal law and therefore was not assimilated into federal law when (the Act) was enacted in 1975,” the Appeals Court found, later adding, “Because Montana lacks concurrent legislative jurisdiction, there is no basis to apply the Streambed Act to the Amblers’ property.”