State Agency Asks Court to Dismiss Spencer Dam Fatality Lawsuit
By Bill Kelly , Senior Producer/Reporter Nebraska Public Media
April 11, 2022, 4:40 p.m. ·
The state agency responsible for safety inspections of Nebraska's dams told a Holt County district judge it should not be held accountable for the 2019 failure of Spencer Dam on the Niobrara River.
The family of Kenny Angel, who lost his life in the disaster, disagrees.
Angel's widow claims inadequate inspections and a failure to create an emergency response plan contributed to the disaster.
On Monday, attorneys for the opposing sides argued whether there is enough preliminary evidence to justify advancing the civil case to a full trial. The state of Nebraska filed a motion to dismiss and asked Judge Mark Kozisek to reject advancing the family's case demanding damages.
The catastrophic bomb cyclone in March 2019 wiped out Spencer Dam. Ice flows pushed the hydroelectric plant's concrete and steel downstream, crushing the tavern and campground owned by the Angel family. Kenny Angel's body, truck, and much of the home once found on the property were never located.
His wife and family filed suit, holding responsible the dam's owner, the Nebraska Public Power District (NPPD), and the safety inspectors at the state Department of Natural Resources (DNR).
An independent investigation done by a group of dam safety engineers determined the historic ice build-up caused the collapse but also concluded Spencer Dam should have been listed as a high hazard dam by state officials. That designation would have required regular inspections by a specially-trained engineer and an emergency evacuation plan for people downstream.
The DNR put no such demands on the dam's owner.
In court, attorneys for the DNR argued federal law prohibits most lawsuits from attempting to recover damages after a dam fails. Even if a case were allowed to advance, the DNR claims it met all obligations under federal law.
Justine Lavene, with the Nebraska attorney general’s office, told the judge the state had not taken control of the dam from its owners, Nebraska Public Power. As a result, federal law blocks anyone from claiming damages.
"It is an undisputed fact that the department did not know there was an emergency until the dam was breached and therefore we did not have notice, we did not make any evaluation of the dam, and we did not take control," Lavene told the court.
Even so, the state maintains its dam inspectors did what was required of them by federal law. According to briefs filed on behalf of the DNR, between 1967 and 2018, the department conducted over 20 dam safety inspections. The last inspection, they claim, was in April 2018.
Speaking on behalf of the Angel family's claim, Attorney Mike Coyle argued there was plenty of evidence the dam failed, in part, because of decades of neglect from the Department of Natural Resources.
All high hazard dams must develop individualized emergency action plans (EAP) identifying what conditions would trigger a response from the dam's owners, government officials, and first responders. It's designed to minimize property damage and loss of life.
Spencer Dam did not have an EAP since Nebraska's dam safety officials had not rated the structure in the high hazard category.
Coyle argued since the dam "was mis-rated by the Department of Natural Resources they set the standard of care in an emergency" resulting in the failure to plan for a life-threatening disaster.
In court filings, the state agency concedes "the department had the discretion to, but did not, require NPPD to develop an EAP for Spencer Dam."
In a brief filed before the hearing, attorneys for the Angle family claimed, "the department never properly rated the dam's hazard level, even though (the properties where Kenny Angel stayed that night) were 400 feet below a 29-foot dam; directly downstream."
As part of the EAP, the DNR would have "created inundation maps" delineating where the floodwaters would likely do damage, "which would have predicted damage in the event of a breach."
Placing a map of the Niobrara River Valley on an easel in front of the judge, Coyle said, "All of these people’s homes and properties were directly below the dam. They had non-discretionary duty to conduct that analysis and they didn’t do it in this case."
An apparently skeptical District Court Judge Mark Kozisek repeatedly asked the Angel family attorney why state dam officials should be held accountable if the state didn’t learn of the emergency until after the dam failed. The judge will determine whether sufficient evidence supports taking the case to trial.
In January, NPPD paid the Angel family $2.5 million to settle their end of the lawsuit. The public utility managed Spencer Dam since 1970 and was responsible for maintenance.