APPENDIX D: LEGAL OPINION ON NEBRASKA LAW
CONCERNING THE REMOVAL OF ICE JAMS
(Drafted by James R. Cook, February 15, 1994)
including but not limited to... flood..." Those two
Nebraska law does not address specifically the
questions of (1) who, if anyone, has authority to
statutes authorize virtually any activity that the
approve ice jam removal (including by dynamit-
state or an appropriate local subdivision deems
ing) in the state's watercourses, or (2) what liabil-
necessary to prevent or minimize the consequenc-
ity exists for injury to person or damage to prop-
es of flooding. However, it is very important that
erty as a result of any efforts extended toward
the provisions of the Disaster Act be followed
such removal or as a result of the removal itself.
carefully to take advantage of the protection grant-
However, the questions are answered in a general
ed by that act. Part of that compliance involves
way through the Nebraska Disaster and Civil De-
the preparation of state and local disaster plans.
fense Act (hereinafter called the Disaster Act)
The authority and requirement for the state disas-
sections 81-829.36 to 81-829.68, R.R.S. 1943, as
ter plan is section 81-829.41, R.R.S. 1943. The au-
amended.*
thority and requirement for local disaster plans is
As is true for other emergency activities, if ef-
section 81-829.46(8), R.S. Supp, 1992. For disaster
forts to remove an ice jam take place in full accord
declarations made by the Governor, section 81-
with the Disaster Act, both the state and its politi-
829.40(4), R.R.S. 1943 provides that "proclamation
cal subdivisions are authorized to approve that
of a state of disaster emergency shall activate disaster
activity and are essentially insulated from liabili-
response and recovery aspects of the state, local, and
ty for any damages resulting therefrom. If such
interjurisdictional disaster and civil defense plans
action is not taken in accord with the Disaster Act,
applicable to the political subdivision or area in
the basis for such authority is unclear and the
chances of liability are much higher. The ques-
emergency also may be declared by the principal
tions are analyzed in more detail below.
executive officer of any political subdivision (81-
829.50)(1)), R.R.S. 1943. The effect of any such lo-
cal declaration is to "...activate the response and
Authority to Approve
recovery aspects of and all applicable local or inter-
Ice Jam Removal
jurisdictional disaster or civil defense plan..." (em-
Section 82-829.39 of the Disaster Act defines
phasis added) (81-829.50)(2)), R.R.S. 1943. It is im-
the term "civil defense" in relevant part to mean
portant to note from these two statutes that
"...the preparation for and the carrying out
whether the disaster declaration is by the Gover-
of all emergency functions...to prevent,
nor or by a local political subdivision, the effect is
minimize...damage resulting from disas-
to authorize the carrying out of what is included
ters caused by...flood.... These functions
in the applicable plan (state or local). It is there-
include, without limitation...other func-
fore advisable for those plans to include provi-
sions for relief from ice jams, including standards
tions related to civilian protection, togeth-
or criteria for when the existence of those ice jams
er with all other activities necessary or in-
will result in a disaster emergency declaration
cidental to the preparation for and carrying
and also the proposed measures to respond to
out of the foregoing functions."
The same statute defines "disaster" to mean
that situation. If it is anticipated that the response
"...occurrence or imminent threat of wide spread
may include dynamiting, when and how that will
or severe damage, injury, or loss of life or proper-
be done must be addressed in the plan.
ty resulting from any natural or manmade cause,
Limitation of Liability
If the activities undertaken are in accordance
with the Disaster Act, section 81-829.55 provides
* NOTE: LB 1203, currently pending before the Ne-
extensive protection from liability. In relevant part,
braska Legislature, would rename the act the "Emer-
that section provides as follows:
gency Management Act" and would modify the laws
"Neither the United States, the state nor
upon which this paper is based. If LB 1203 or similar
any political subdivision thereof nor oth-
legislation passes, modifications to this paper will be
needed.
er agencies of the United States, the state
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