Angel v. Nebraska Dept. of Nat. Resources , 314 Neb. 1 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/14/2023 09:06 AM CDT
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
ANGEL V. NEBRASKA DEPT. OF NAT. RESOURCES
Cite as 314 Neb. 1Linda J. Angel, individually and as Special
Administrator of the Estate of Kenneth
D. Angel, deceased, and Angels’, Inc.,
appellants, v. Nebraska Department
of Natural Resources, appellee.
___ N.W.2d ___
Filed April 14, 2023. No. S-22-447.
1. Immunity: Jurisdiction. Sovereign immunity is jurisdictional in nature,
and courts have a duty to determine whether they have subject matter
jurisdiction over a matter.
2. Jurisdiction. Subject matter jurisdiction is a question of law.
3. Statutes: Appeal and Error. The meaning and interpretation of statutes
are questions of law for which an appellate court has an obligation to
reach an independent conclusion irrespective of the decision made by
the court below.
4. Summary Judgment: Appeal and Error. An appellate court reviews a
district court’s grant of summary judgment de novo, viewing the record
in the light most favorable to the nonmoving party and drawing all rea-
sonable inferences in that party’s favor.
5. Statutes: Appeal and Error. Statutory language must be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
6. Statutes: Legislature: Intent. When construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
7. Statutes: Intent. A court must look at the statutory objective to be
accomplished, the problem to be remedied, or the purpose to be served,
and then place on the statute a reasonable construction which best
achieves the purpose of the statute, rather than a construction defeating
the statutory purpose.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
ANGEL V. NEBRASKA DEPT. OF NAT. RESOURCES
Cite as 314 Neb. 18. Statutes. It is not within the province of a court to read a meaning into
a statute that is not warranted by the language; neither is it within the
province of a court to read anything plain, direct, or unambiguous out of
a statute.
9. Statutes: Appeal and Error. To give effect to all parts of a statute, an
appellate court will attempt to reconcile different provisions so they are
consistent, harmonious, and sensible, and will avoid rejecting as super-
fluous or meaningless any word, clause, or sentence.
10. Waters: Words and Phrases. The phrase “control and regulation” as
used in Neb. Rev. Stat. § 46-1639(1) (Reissue 2021) means general
authority over a dam.
11. Statutes: Immunity. Statutes in derogation of sovereignty of the State
or its subdivisions should be strictly construed in favor of the State.
12. Summary Judgment: Appeal and Error. An appellate court affirms a
lower court’s grant of summary judgment if the pleadings and admitted
evidence show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts and that
the moving party is entitled to judgment as a matter of law.
Appeal from the District Court for Holt County: Mark D.
Kozisek, Judge. Affirmed.
Michael F. Coyle, Jordan W. Adam, and Karson S. Kampfe,
of Fraser Stryker, P.C., L.L.O., for appellants.
Douglas J. Peterson, Attorney General, Justin D. Lavene,
and Maegan L. Woita for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
The failure of a dam following unusual weather events
led to the destruction of nearby property and a person’s
death. The property owners and the decedent’s surviving
spouse sued the Nebraska Department of Natural Resources
(Department) under theories of negligence and nuisance. The
district court granted the Department a summary judgment.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
ANGEL V. NEBRASKA DEPT. OF NAT. RESOURCES
Cite as 314 Neb. 1Because immunity in the Safety of Dams and Reservoirs Act
(Act) 1 barred the claims, we affirm the district court’s grant of
summary judgment in the Department’s favor.
BACKGROUND
Overview of Act
In 2005, the Legislature passed the Act. 2 Its stated purposes
are “to regulate all dams and associated reservoirs for the
protection of public health, safety, and welfare and to mini-
mize the adverse consequences associated with the potential
failure of such dams and reservoirs.” 3 The Act defines adverse
consequences as “negative impacts that may occur upstream,
downstream, or at locations remote from the dam, including,
but not limited to, loss of human life, economic loss including
property damage, and lifeline disruption.” 4
Under the Act, dams in Nebraska are classified according
to their hazard potential. 5 The classification is based on “the
degree of incremental adverse consequences of a failure or
misoperation of a dam.” 6 The hazard potential classification
“does not reflect on the current condition of a dam, including,
but not limited to, safety, structural integrity, or flood rout-
ing capacity.” 7
A dam is classified as either high hazard potential, 8 sig-
nificant hazard potential, 9 low hazard potential, 10 or minimal
1
Neb. Rev. Stat. §§ 46-1601 to 46-1670 (Reissue 2021).
2
See 2005 Neb. Laws, L.B. 335.
3
§ 46-1635.
4
§ 46-1604.
5
See § 46-1618.
6
Id.
7
Id.
8
§ 46-1619.
9
§ 46-1632.
10
§ 46-1621.
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314 Nebraska Reports
ANGEL V. NEBRASKA DEPT. OF NAT. RESOURCES
Cite as 314 Neb. 1hazard potential. 11 Under a high hazard potential classification,
“failure or misoperation of the dam resulting in loss of human
life is probable.” 12 In contrast, a significant hazard potential
classification is appropriate when “failure or misoperation of
the dam would result in no probable loss of human life but
could result in major economic loss, environmental damage, or
disruption of lifeline facilities.” 13
A dam’s hazard potential classification affects the fre-
quency of inspections and the requirement of an emergency
action plan. A high hazard potential dam is inspected by the
Department annually, and a significant hazard potential dam
is inspected biennially. 14 The owner of a high hazard poten-
tial dam must “develop and periodically test and update an
emergency action plan to be implemented in the event of an
emergency involving such dam.” 15 With a significant haz-
ard potential dam, the Department may require the owner to
develop such a plan. 16
Under the Act, the owner of a dam has the primary respon-
sibility for determining when an emergency exists. 17 “The
owner shall immediately notify any persons who may be
endangered if the dam should fail, notify emergency man-
agement organizations in the area, take necessary remedial
action to prevent or mitigate the consequences of failure,
and notify the department.” 18 Under some circumstances, the
Department shall take any remedial action necessary to protect
life and property. 19
11
§ 46-1623.
12
§ 46-1619.
13
§ 46-1632.
14
§ 46-1664(1).
15
§ 46-1647(1).
16
Id.
17
§ 46-1665(1).
18
Id.
19
Id.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
ANGEL V. NEBRASKA DEPT. OF NAT. RESOURCES
Cite as 314 Neb. 1The Act provides immunity from liability in the event of
a dam’s failure. Under § 46-1639(1), “[n]o action shall be
brought against the state, the department, or its agents or
employees 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 . . . .” But this immunity does
not extend to the owner or operator of a dam: “The . . . Act
does not relieve an owner or operator of a dam of the legal
duties, obligations, or liabilities incident to the ownership or
operation of the dam.” 20
Spencer Dam
Spencer Dam (Dam) is a dam 21 located on or near the
Niobrara River, the main channel of which forms the bound-
ary between Holt and Boyd Counties in Nebraska. The Dam
was originally constructed in the 1920s by Northern Nebraska
Power Company. The Nebraska Department of Public Works
approved the plans for construction of the Dam. Since 1970,
the Nebraska Public Power District (NPPD) has owned, oper-
ated, and managed the Dam. NPPD is responsible for the main-
tenance and design of the Dam.
Over time, the Dam suffered a number of failures and inci-
dents. It failed twice in the 1930s. One incident occurred in
March 1935, when a large section of the dike breached after
a log and ice jam formed. The Dam was reconstructed in the
1940s. In the 1960s, it suffered flood and ice damage and ero-
sion of the downstream side of the embankment.
Nearby Property
Linda J. Angel, Kenneth D. Angel, and Angels’, Inc., owned
property to the east of the Dam. The property included a house,
a saloon, and a campground. The property was between the
Dam’s earthen dike and a highway.
20
§ 46-1639(2).
21
See § 46-1611.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
ANGEL V. NEBRASKA DEPT. OF NAT. RESOURCES
Cite as 314 Neb. 12019 Dam Failure
On March 12, 2019, the Governor of Nebraska issued a
proclamation declaring that a state of emergency existed in
Nebraska due to unusual weather events. It referenced severe
ice buildup in Nebraska rivers and weather predictions indicat-
ing a variety of storm conditions—including flooding—over
the next few days.
On March 14, 2019, the Dam failed. It failed at the concrete
dam, as well as the earthen dike.
Prior to the Dam’s failure, the Department did not receive
notice from the Nebraska Public Power District (NPPD) or
anyone else that an emergency existed at the Dam. Nor was
it informed that NPPD employees were opening “tainter gates
and stoplog bays.”
Following the Dam’s failure, a new channel of the Niobrara
River went through the nearby property. Kenneth was never
found; a court entered an order declaring him deceased and
directing issuance of a death certificate showing the cause of
death as drowning on March 14, 2019.
An independent investigative panel of the Association of
State Dam Safety Officials examined the Dam’s failure. The
panel’s report stated that based on the documentation provided,
the Dam appeared to have been well maintained. According to
the “Executive Summary” of the report:
The flood of water and ice greatly exceeded the capac-
ity of the dam and its spillways. In the panel’s opinion,
there was nothing the operators at the dam could have
done the morning of the flood that would have kept the
dam from failing given the magnitude of the flood and
ice run.
The panel identified two human factors contributing to the
Dam’s failure and consequences. One was “a notable lack
of knowledge about ice-run-related potential failure modes
generally in the dam safety industry.” The other was that
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314 Nebraska Reports
ANGEL V. NEBRASKA DEPT. OF NAT. RESOURCES
Cite as 314 Neb. 1“[the Nebraska Dam Safety Program] and NPPD underes-
timated the potential of the dam to cause life-threatening
flooding at the downstream house and property in the event
of dam failure.”
Department’s Responsibilities
Under the Act, the Department has authority to regulate
the over 2,900 dams in Nebraska, including the Dam. As part
of the Department’s regulation of dams, it conducts safety
inspections.
The Department, or its predecessor, conducted safety inspec-
tions of the Dam from 1967 to 2018. In 1989, the Department
recommended repair of deterioration and other maintenance
issues. The record shows that after the effective date of the Act,
the Department inspected the Dam in 2008, 2009, 2012, 2015,
and 2018.
Prior to the Dam’s failure, the last safety inspection occurred
in April 2018. The “Dam Inspection Checklist” identified
several deficiencies requiring attention: spalling, cracking,
or scaling of the principal spillway inlet and outlet; a rodent
hole on the downstream slope; and seepage or boils on the
downstream slope. The checklist assessed the Dam’s condition
as “Fair-Deficiencies exist which could lead to dam failure
during rare, extreme storm events.” An NPPD dam safety
engineer who participated in the inspection reported in an
email that “the dam was in good shape with no major items
of concern.”
The Department also has the responsibility to rate the haz-
ard potential of dams. The Department classified the Dam as
a significant hazard potential dam. It did not require NPPD to
develop an emergency action plan for the Dam, and the Dam
did not have such a plan. There are over 200 dams with a sig-
nificant hazard rating, and the Department has not required an
emergency action plan for any of them.
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314 Nebraska Reports
ANGEL V. NEBRASKA DEPT. OF NAT. RESOURCES
Cite as 314 Neb. 1Lawsuit
Linda, individually and as special administrator of
Kenneth’s estate, and Angels’ (collectively the Angels) sued
the Department. They alleged that the negligence of the
Department and its predecessor agencies caused the Dam’s fail-
ure and interfered with their use and enjoyment of their prop-
erty. The Department’s responsive pleading asserted immunity
as an affirmative defense.
The Angels also sued NPPD, the Dam’s owner and operator.
They reached a settlement, and the court accepted their stipula-
tion to dismiss NPPD from the action with prejudice.
The Department moved for summary judgment. It asserted
that the district court lacked subject matter jurisdiction
because the claims were barred by the Department’s immu-
nity set forth in the Act and by exceptions in the State Tort
Claims Act. 22
An expert retained by the Angels opined to a reasonable
degree of engineering and scientific certainty that the Dam
failed because “it was not constructed, maintained, inspected,
tested, or operated to withstand reasonably foreseeable weather
events.” He opined that the Department knew or should have
known that an early spring flood could breach the Dam’s
dike. He further opined that the Department knew or should
have known that failure of the Dam would endanger the lives
of any person present on the Angels’ property, which was
located downstream from the dike. According to the Angels’
expert, the Dam’s hazard potential was incorrect, because it
was clearly a high hazard potential dam. He cited the indepen-
dent investigative panel’s report, which stated that “[b]ecause
the homeowner’s property was just 1/3 mile downstream
from the dam, the Panel believes that the dam was misclas-
sified, and it should have been classified as a [h]igh hazard
potential dam.”
22
See Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014 & Cum. Supp.
2022).
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
ANGEL V. NEBRASKA DEPT. OF NAT. RESOURCES
Cite as 314 Neb. 1District Court’s Order
The court entered summary judgment in the Department’s
favor. It determined that the Department had immunity under
the Act “except in very limited circumstances.” The court
stated that the Angels sought damages for negligence by the
Department in classifying the Dam’s hazard potential, which
the court stated was a regulatory action. The court observed
that the Angels’ claims were barred if the Department did not
assume control of the Dam during an emergency. The court
noted that the Angels focused on what the Department did or
did not do before and after the dam failure, but not on what it
did or did not do during the emergency.
The court reasoned that the “control” contemplated by the
Act was more fully explained by § 46-1665, which described
remedial actions that the Department might take to protect
life and property during an emergency. The court reasoned
that control referred to in §§ 46-1636 and 46-1665 “encom-
passes the transfer of power and control of the operation of
the dam to the [Department] temporarily until the emergency
has passed.” It further reasoned that the hazard classification
of a dam “has no connection to operational control over a dam
that may be taken by the [Department] in an emergency.” The
court determined that the immunity in the Act barred all of the
Angels’ claims and that it did not need to consider the State
Tort Claims Act.
The Angels appealed, and we granted their petition to bypass
review by the Nebraska Court of Appeals.
ASSIGNMENT OF ERROR
The Angels assign six errors which, consolidated and
restated, allege that the district court erred in finding that their
claims were barred by immunity in § 46-1639(1).
STANDARD OF REVIEW
[1,2] Sovereign immunity is jurisdictional in nature, and
courts have a duty to determine whether they have subject
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314 Nebraska Reports
ANGEL V. NEBRASKA DEPT. OF NAT. RESOURCES
Cite as 314 Neb. 1matter jurisdiction over a matter. 23 Subject matter jurisdiction
is a question of law. 24
[3] The meaning and interpretation of statutes are questions
of law for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by
the court below. 25
[4] An appellate court reviews a district court’s grant of
summary judgment de novo, viewing the record in the light
most favorable to the nonmoving party and drawing all reason-
able inferences in that party’s favor. 26
ANALYSIS
The Angels argue that their claims are not barred by
§ 46-1639(1) for three reasons. Before discussing the Angels’
arguments, we set forth the immunity statute and recall the
principles of statutory interpretation and construction that will
guide our analysis.
Immunity Statute
We set forth the immunity statute in full. Section 46-1639
provides:
(1) No action shall be brought against the state, the
department, or its agents or employees 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 Safety of Dams and Reservoirs Act, including, but not
limited to, any of the following:
(a) Design and construction application approval of
the dam or approval of interim flood routing plans dur-
ing construction, reconstruction, enlargement, alteration,
breach, removal, or abandonment;
23
Schaeffer v. Frakes, 313 Neb. 337, 984 N.W.2d 290 (2023).
24
Id.25
Childs v. Frakes, 312 Neb. 925, 981 N.W.2d 598 (2022).
26
Avis Rent A Car Sys. v. McDavid, 313 Neb. 479, 984 N.W.2d 632 (2023).
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ANGEL V. NEBRASKA DEPT. OF NAT. RESOURCES
Cite as 314 Neb. 1(b) The issuance or enforcement of orders relative to
maintenance or operation of the dam;
(c) Control and regulation of the dam;
(d) Measures taken to protect against failure of the
dam during an emergency, except for negligent acts of
the department in assuming control of a dam during an
emergency; or
(e) Failure to act.
(2) The Safety of Dams and Reservoirs Act does not
relieve an owner or operator of a dam of the legal duties,
obligations, or liabilities incident to the ownership or
operation of the dam.
At oral argument, the Department characterized § 46-1639
as a grant of immunity, but also conceded that the Legislature
was implementing the constitutional provision, stating that the
state “may sue and be sued,” and empowering the Legislature
to “provide by law in what manner and in what courts suits
shall be brought.” 27 It has been observed that immunity under
one statute does not necessarily indicate that an action will be
barred under another statute with a differing scheme. 28 Here,
we need not consider any other statutory scheme or whether
the Department’s terminology regarding § 46-1639(1) is pre-
cisely correct. No matter how the Act might be categorized, it
controls the decision here.
Principles of Statutory Interpretation
and Construction
[5-7] Statutory language must be given its plain and ordi-
nary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which
27
Neb. Const. art. V, § 22.
28
See Dion v. City of Omaha, 311 Neb. 522, 973 N.W.2d 666 (2022) (Miller-
Lerman, J., concurring in part, and in part dissenting) (citing Davis v.
Harrod, 407 F.2d 1280 (D.C. Cir. 1969)).
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Nebraska Supreme Court Advance Sheets
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ANGEL V. NEBRASKA DEPT. OF NAT. RESOURCES
Cite as 314 Neb. 1are plain, direct, and unambiguous. 29 When construing a stat-
ute, a court must determine and give effect to the purpose
and intent of the Legislature as ascertained from the entire
language of the statute considered in its plain, ordinary, and
popular sense. 30 A court must look at the statutory objective to
be accomplished, the problem to be remedied, or the purpose
to be served, and then place on the statute a reasonable con-
struction which best achieves the purpose of the statute, rather
than a construction defeating the statutory purpose. 31
[8,9] It is not within the province of a court to read a mean-
ing into a statute that is not warranted by the language; neither
is it within the province of a court to read anything plain,
direct, or unambiguous out of a statute. 32 To give effect to all
parts of a statute, an appellate court will attempt to reconcile
different provisions so they are consistent, harmonious, and
sensible, and will avoid rejecting as superfluous or meaning-
less any word, clause, or sentence. 33
We now turn to the Angels’ arguments asserting that the
Department does not have immunity under § 46-1639(1).
Pre-Act Conduct
First, the Angels contend that the Department is not immune
for any of its negligent conduct committed before the effective
date of the Act. They assert that before § 46-1639(1) became
effective on September 4, 2005, “no statute granted [the
Department] statutory immunity for its acts and omission[s].” 34
Based on this premise, they reason that § 46-1639(1) did not
preclude their action. We disagree.
29
Timothy L. Ashford, PC LLO v. Roses, 313 Neb. 302, 984 N.W.2d 596(2023).
30
Id.31
Id.32
County of Lancaster v. County of Custer, 313 Neb. 622, 985 N.W.2d 612(2023).
33
Yagodinski v. Sutton, 309 Neb. 179, 959 N.W.2d 541 (2021).
34
Brief for appellants at 17.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
ANGEL V. NEBRASKA DEPT. OF NAT. RESOURCES
Cite as 314 Neb. 1The language of the Act provides no support for the Angels’
assertion. To start, the Act contains no temporal limitation with
respect to its general applicability. The Legislature knew that
hundreds, if not thousands, of dams had already been con-
structed in Nebraska by the time of the Act’s passage in 2005.
And two statutes specifically address matters occurring “prior
to September 4, 2005.” 35 Section 46-1639 is not one of those
statutes. If the Legislature wished to exclude from immunity
any negligent conduct concerning control and regulation of a
dam occurring prior to the effective date of the Act, it could
have done so.
Nor is the Angels’ argument buttressed by the plain language
of the immunity statute. Section 46-1639(1) provides that “[n]o
action shall be brought against the state, the department, or its
agents or employees 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].” (Emphasis supplied.)
The statute does not differentiate between conduct occurring
before or after the Act’s existence.
Here, the Angels brought an action against the Department
for damages caused by the Dam’s failure in March 2019.
The failure occurred over a decade after the Act became law.
Because the Dam failed after the Act became effective, the Act
applies. This assignment of error lacks merit.
Control and Regulation
Second, the Angels argue that § 46-1639(1) does not pro-
vide the Department with immunity, because the Department’s
acts and omissions were not “by reason of control and regu-
lation” of the Dam. In making their argument, the Angels
look at the words “control” and “regulation” separately and
ascribe meanings to the terms that do not fit with the Act’s
purpose. They argue that as used in § 46-1639(1), “regulation”
35
§§ 46-1655(3) (fees and applications for approval) and 46-1670(1)
(application for approval of completed dam).
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ANGEL V. NEBRASKA DEPT. OF NAT. RESOURCES
Cite as 314 Neb. 1means “promulgation of formal rules” and “control” means the
Department’s “performing any operational act at a dam.” 36 The
Angels’ reading disregards several of our principles of statu-
tory interpretation and construction.
[10] Applying our guiding principles, we reach a differ-
ent interpretation. We must give effect to the purpose of
the Legislature, and the Legislature explicitly stated that it
intended the Act “to regulate all dams . . . for the protection of
public health, safety, and welfare.” 37 Because the Legislature
used the phrase “control and regulation” in § 46-1639(1), we
read those terms together as referring to general authority 38
over a dam.
Dictionary definitions show that “control” and “regulate” are
essentially synonymous. Although the Department relies upon
a different dictionary, 39 it correctly observes that definitions
of the words “control” 40 and “regulate” 41 cross-reference one
another. This commonly occurs in the English language. 42
36
Brief for appellants at 23.
37
§ 46-1635.
38
See, e.g., State ex rel. State Railway Commission v. Ramsey, 151 Neb.
333, 37 N.W.2d 502 (1949) (jurisdiction to regulate and control common
carriers); In re Yellow Cab & Baggage Co., 126 Neb. 138, 253 N.W. 80(1934) (general control and regulation of operation of taxicabs).
39
See brief for appellee at 21, quoting definitions of “control” and “regulate”
from Webster’s New World College Dictionary (5th ed. 2014).
40
“Control,” Oxford English Dictionary Online, https://www.oed.com/view/
Entry/40563 (“to regulate or govern”; borrowing from French) (last visited
Apr. 7, 2023).
41
“Regulate,” Oxford English Dictionary Online, https://www.oed.com/
view/Entry/161422 (“[t]o control, govern, or direct, esp. by means of
regulations or restrictions”; borrowing from Latin) (last visited Apr. 7,
2023).
42
See Kohlbrand v. Ranieri, 159 Ohio App. 3d 140, 823 N.E.2d 76 (2005);
Britt Hanson, A (Mostly) Succinct History of English Legal Language,
48 Arizona Attorney 28 (2012); and Rabb Emison, How Will They Know
We’re Lawyers?, 48 Res Gestae 46 (2005) (all discussing use of French
and English legal words following Norman Conquest).
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ANGEL V. NEBRASKA DEPT. OF NAT. RESOURCES
Cite as 314 Neb. 1Having settled that “control and regulation” used in
§ 46-1639(1) means general authority over a dam, we return
to the Angels’ second argument. They contend that the
Department’s alleged negligent acts did not fall within its
control and regulation of the dam or within the conduct listed
in the subsections of § 46-1639(1). The Angels urge a nar-
row interpretation and contend that duties like inspections
and determining hazard potential classifications would not fall
within the listed conduct. We disagree.
[11] The Angels’ narrow focus on the listed conduct is
inconsistent with the statutory language. Section 46-1639(1)
explicitly states that “control and regulation [under the Act]
includ[es], but [is] not limited to, any of the following”:
(a) Design and construction application approval of
the dam or approval of interim flood routing plans dur-
ing construction, reconstruction, enlargement, alteration,
breach, removal, or abandonment;
(b) The issuance or enforcement of orders relative to
maintenance or operation of the dam;
(c) Control and regulation of the dam;
(d) Measures taken to protect against failure of the
dam during an emergency, except for negligent acts of
the department in assuming control of a dam during an
emergency; or
(e) Failure to act.
The Legislature included a nonexhaustive list of actions along
with the failure to act. By doing so, the Legislature must have
envisioned other regulatory-type actions to fall within the
immunity provision. Moreover, the Angels’ narrow interpre­
tation would conflict with the principle that statutes in deroga-
tion of sovereignty of the State or its subdivisions should be
strictly construed in favor of the State. 43
The Angels claim that the Department was negligent
in approving revised plans to reconstruct the Dam. But
43
See Jill B. & Travis B. v. State, 297 Neb. 57, 899 N.W.2d 241 (2017).
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ANGEL V. NEBRASKA DEPT. OF NAT. RESOURCES
Cite as 314 Neb. 1approval of plans is part of the Department’s regulatory
duties. 44 The Angels also contend that the Department was
negligent in operating, maintaining, or managing the Dam. But
NPPD—not the Department—was the Dam’s owner and was
responsible for the operation, maintenance, and management
of the Dam. The Department has responsibilities to conduct
inspections to determine a dam’s safety 45 and to issue notices
of violation and/or orders requiring the owner to take some
action. 46 But these are actions of control and regulation and
fall within the examples of actions covered by immunity in
§ 46-1639(1): “[d]esign and construction application approval
of the dam,” 47 “issuance or enforcement of orders relative to
maintenance or operation of the dam,” 48 and “[c]ontrol and
regulation of the dam.” 49
The Angels assert that the Department was negligent in
determining the Dam’s hazard potential classification and in
not requiring an emergency action plan. Again, these fall within
the Department’s control and regulation. A higher hazard poten-
tial generally leads to greater regulation. 50 The Department has
immunity for its action or inaction in this regard.
In sum, the Department’s actions (or failures to act) upon
which the Angels base their suit are regulatory in nature. In
addition to the alleged failures to act that we have already
mentioned, the Angels also contend that the Department
was negligent in failing to train or supervise its agents and
employees. To the extent their claims were premised upon
44
See §§ 46-1646(1), 46-1652, 46-1653, and 46-1654.
45
See § 46-1664.
46
See §§ 46-1647(4), 46-1653(5) and (6), 46-1662(2) through (4), 46-1663,
and 46-1665.
47
§ 46-1639(1)(a).
48
§ 46-1639(1)(b).
49
§ 46-1639(1)(c).
50
See, e.g., §§ 46-1647 and 46-1664.
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314 Nebraska Reports
ANGEL V. NEBRASKA DEPT. OF NAT. RESOURCES
Cite as 314 Neb. 1the Department’s or its agents’ or employees’ failure to do
something, § 46-1639(1)(e) provides immunity due to “[f]ail-
ure to act” in control and regulation of the Dam.
Negligent Acts in Assuming Control
During Emergency
Finally, the Angels argue that the Department’s conduct
fell within an exception to immunity. Section 46-1639(1)(d)
provides immunity for “[m]easures taken to protect against
failure of the dam during an emergency” but excepts from that
immunity “negligent acts of the department in assuming con-
trol of a dam during an emergency.” The Angels assert that the
exception includes the Department’s negligent inspections and
adjudications of hazard potential and its continued negligence
within the scope of that assumed control. We disagree with
their strained interpretation, which fails to strictly construe
statutes in derogation of sovereignty.
To understand this exception, one must understand the Act’s
definition of an emergency. “Emergency includes, but is not
limited to, breaches and all conditions leading to or causing a
breach, overtopping, or any other condition in a dam that may
be construed as unsafe or threatening to life.” 51 A breach is a
dam failure; it is defined as “partial removal of a dam creat-
ing a channel through the dam to the natural bed elevation of
the stream.” 52
A statute specifically addresses emergency actions involv-
ing a dam. Under § 46-1665(1), a dam’s owner has primary
responsibility for determining when an emergency exists. That
statute further identifies responsibilities for the owner to take
and remedial actions for the Department to take under certain
circumstances. It should go without saying that the Department
must first be aware that an emergency exists before it must
take remedial action.
51
§ 46-1615.
52
§ 46-1609.
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314 Nebraska Reports
ANGEL V. NEBRASKA DEPT. OF NAT. RESOURCES
Cite as 314 Neb. 1Section 46-1665 elaborates on the Department’s duties in an
emergency. Section 46-1665(1) identifies when the Department
must take remedial action. Section 46-1665(2) specifies actions
the Department may take in applying remedial means in an
emergency. Those actions include “[t]ak[ing] full charge and
control of any dam.” 53 Section 46-1665(3) provides that the
Department “shall continue in full charge and control of such
dam and its appurtenant works until they are rendered safe or
the emergency occasioning the action has ceased and the owner
is able to take back full charge and control.”
Returning to the language of the exception, it applies when
the Department commits negligent acts in assuming control
of a dam during an emergency. Here, the Department did not
become aware of the Dam’s failure or the conditions leading to
the failure until after it had been breached. The Angels’ alle-
gations of negligence are not based on any acts or omissions
during an emergency. Because the Department did not assume
control of the Dam during an emergency, the exception to
immunity in § 46-1639(d) does not apply.
Summary Judgment
[12] An appellate court affirms a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from the
facts and that the moving party is entitled to judgment as a
matter of law. 54 Here, the district court granted judgment in
the Department’s favor after determining that immunity under
§ 46-1639(1) barred the Angels’ claims. Because we agree
that the pleadings and evidence show that the Department had
immunity under § 46-1639(1), it was entitled to judgment as a
matter of law.
53
§ 46-1665(2)(a).
54
Hoagbin v. School Dist. No. 28-0017, 313 Neb. 397, 984 N.W.2d 305(2023).
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314 Nebraska Reports
ANGEL V. NEBRASKA DEPT. OF NAT. RESOURCES
Cite as 314 Neb. 1CONCLUSION
The March 14, 2019, failure of the Dam resulted in a tragic
loss of life and property. But the Act imposes responsibility
for that loss upon the Dam’s owner and operator—NPPD—
and immunizes the Department from liability for that loss.
The policy choices underlying this result were selected by the
Legislature, and it is not our role to substitute different poli-
cies for those selected by the people’s elected representatives.
While we sympathize with the Angels for their losses, we
conclude that the Act provided the Department with immunity
for the claims asserted against it. Because the Department was
entitled to judgment as a matter of law, we affirm the district
court’s grant of summary judgment in the Department’s favor.
Affirmed.