In Spencer Dam Damages Case, NPPD Argues State Law Bars Claims Made by Family.

Before deciding if the family of a man killed during the collapse of Spencer Dam in 2019, a district court judge must first decide if state law allows a damages claim against the public power district and Nebraska state agency responsible for the hydro-electric plant's safe operation.

The Nebraska Public Power District (NPPD) and the Nebraska Department of Natural Resources (NDNR) came to the Holt County Courthouse in O'Neill to argue a lawsuit from the family of the late Kenny Angel should be thrown out.

Monday was the first stage in the case before District Court Judge Mark Kozisek.

The massive ice flow on the Niobrara River that burst through the dam apparently killed Angel and wiped out a home and the Straw Bale Saloon complex owned by his family. His body and much of debris from the structures have never been found.

The Angel family asks for five million dollars in damages against NPPD, the owner of the 90-year-old hydro-electric plant, and NDNR, which regulates dams. The suit claim's both parties should have taken action long before the March floods, knowing the aging structure had severe problems.

Family attorney Michael Coyle released a statement following the hearing.

"Today marks the first step in efforts the Angel family is bringing against who they believe (are) the responsible parties for justice on behalf of Kenneth Angel and his family."

In the statement, the family contends the case is "not simply about money damages or compensation" but "about the hundreds of ticking time bomb dams and structures across Nebraska and America that are in dire need of repair."

During the hearing, NPPD and the state argued state law and previous court rulings limit or completely block the family from making damage claims against the utility and the state agency. At issue is whether the public power district has immunity from these types of lawsuits, particularly when an event occurs during an emergency.

NPPD's attorney Steven Guenzel told Judge Kozisek, "what (the Angel family) have alleged is extremely broad." Without the family explaining where specifically in the law the utility could be held responsible, Guenzel argued: "the court has an obligation to not allow claims for which the defendants have immunity to proceed and go forward."

In Nebraska courts, it is common for judges to reject or limit lawsuits filed by individuals seeking damages against state and local government. State law gives government agencies lots of protection to their employees and requires a heavy burden of proof that the government was negligent and responsible for injuries or other damages.

According to Guenzel, "it's not that heavy a burden" to insist the family make a more detailed argument supporting their case.

In this case, NPPD and the state dam regulators claim there is law protecting them from damage claims. They want the judge to rule the nature of the dam's failure to offer those protections. If so, they argue, there's no need to advance the case and spend time collecting evidence on the facts of the case.

The lawyer representing the Angel family argued the court should allow the case to proceed to allow them time discovery, the legal process of fact-finding.

"They got completely wiped out," their attorney Michael Coyle told the court. "They have nothing, and we don't have any information, and we're asking that we get a chance to find out what they did and when they did it."

Coyle conceded the case will undoubtedly become more specific in the allegations against NPPD and the state. To date, little information has been released publicly about the cause of the dam failure and the history of the maintenance of the structure.

That information, according to Coyle, will establish to what degree utility was responsible and why, in this case, immunity from damage claims might not apply.

Coyle provided some preview about his case concerning the alleged responsibility of state regulators. On an easel before the judge, he placed an oversized duplicate of a 2018 inspection report available on the NDNR website.

"The hazard class was 'significant,'" he told the court. "The condition was that 'deficiencies exist that could lead to a dam failure in rare, extreme events.'"

The state apparently did not require NPPD shut down or limit the use of Spencer Dam following that assessment. NPPD firmly rejected any accusation that the utility "knew the dam would fail" before the 2019 disaster

It's likely the case will proceed for now, but Judge Kozisek will rule later on what, if any, limits the Angel family has in advancing their case.