Nebraska Supreme Court Holds State Immune after Spencer Dam’s Collapse

Under Angel v. Nebraska Dep’t of Nat. Res., 314 Neb. 1 (2023), the Safety of Dams and Reservoirs Act immunized the state from liability for its control and regulation of the state’s dams.

After significant flooding and an ice buildup in northern Nebraska, Spencer Dam failed on March 14, 2019. The collapse caused the Niobrara River to wash through Kenneth Angel’s property downstream. Search teams never found Angel, and a court order declared him dead. Angel’s family sued to recover for his death and property damage.[1]

According to the plaintiffs, DNR’s negligent regulation caused the dam to collapse. An expert testified for the plaintiffs that DNR (1) had “misclassified” the dam’s hazard potential and (2) should have known from testing that the dam would fail and endanger residents downstream. On DNR’s motion, the trial court, however, granted summary judgment to DNR, holding that it was immune from liability.

The Nebraska Supreme Court affirmed, holding that the Safety of Dams and Reservoirs Act (“Act”) immunized DNR. The Act “regulate[s] all dams and associated reservoirs.”  Neb. Rev. Stat. § 46-1635. Under the Act, DNR is immune from suit “for the recovery of damages caused by the partial or total failure of any dam by reason of control and regulation thereof pursuant to the … Act ….” § 46-1639(1) (emphasis supplied).

The court interpreted “control and regulation” broadly to include any DNR exercise of general authority over a dam. Thus, because the plaintiff’s allegations concerned DNR’s “general authority” under the Act, DNR was immune.

This immunity even applied to DNR actions occurring before the Act was in place. Although DNR’s alleged “misclassification” had occurred before the Act’s adoption, the Act does not temporally limit its immunity. Thus, DNR is equally immune for conduct before or after the Act’s adoption.

Additionally, the court rejected the plaintiffs’ argument that DNR had assumed responsibility for Spencer Dam prior to its collapse. Under the Act, DNR may take primary responsibility from the dam’s owner during an emergency. § 46-1665(1). But NPPD did not notify DNR of any emergency until after the dam’s collapse. DNR consequently did not assume responsibility as set forth in the Act.

Rather, because the Act’s immunity clause applied, the suit against DNR necessarily failed. The court upheld dismissal.

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[1] The plaintiffs sued both DNR and Spencer Dam’s owner and operator, Nebraska Public Power District (“NPPD”). NPPD and the plaintiffs reached a settlement, however, leaving only DNR as the defendant.