dissenting, with whom LAY, Chief Judge, and McMILLIAN, Circuit Judge, join.
This case should not be before this court for en banc consideration. Our rules are clear that en banc disposition is “rigidly” reserved for cases of “grave constitutional dimension or exceptional public importance, or to an opinion that directly conflicts with Supreme Court or Eighth Circuit precedent.” 8th Cir.R. 35A(a). It is not apparent nor has it been demonstrated that this case meets any of these standards. Certainly the panel opinion does not conflict with any federal, or even state, precedent. Moreover, the only thing “grave” or “important” about this case was the tragedy suffered by Dennis Murdock and his family; that is, unless holding the government liable for this tragedy satisfies either of these criteria.
As the majority’s opinion attests, this case turns on applying state law to largely uncontroverted facts. Such a case should rarely, if ever, justify the convening of a federal court of appeals en banc. Our rules recognize and establish this fact, explicitly explaining that asserted errors in the determination of the facts or state law are not matters for rehearing en banc. 8th Cir.R. 35A(a). Thus, regardless of the outcome, we should not have reheard this case en banc. Compounding the confusion created by the court’s disregard of our own rules is the en banc majority’s decision, which misapplies Nebraska law, and therefore compels this dissent.
I. The Bureau’s Nondelegable Duty
The majority proceeds under the legal theory that before it can conduct nondele-gable duty analysis under Nebraska law, it must first find that the employer, here the Bureau, retained control of the work which injured the victim. See ante at 912-13. To support this approach, the majority cites Erickson v. Monarch Industries, Inc., 347 N.W.2d 99, 105 (Neb.1984). This understanding of Nebraska law is mistaken. Rather than requiring a finding of retention of control before examining the non-delegable duty issue, Nebraska law provides that the principal remains liable for the negligence of the contractor “ ‘if he retains “control” of the work — or if, by rule of law or statute, the duty to guard against the risk is made “nondelegable.” ’ ” Id. at 105 (quoting Funk v. General Motors Corp., 220 N.W.2d 641, 645 (Mich.1974)) (emphasis added).1
*915 II. The Bureau’s Negligence
Despite concluding that the government did not retain control sufficient to expose it to liability, the majority defies its own understanding of Nebraska law and offers its opinion that the district court did not clearly err in ruling that the Bureau did not act negligently. Implicit in this offering is the concession that a nondelegable duty existed “to see that the work is done with the requisite degree of care.” Erickson v. Monarch Indus., Inc., 347 N.W.2d at 105 (quoting Witucke v. Presque Isle Bank, 243 N.W.2d 907, 912 (Mich.Ct.App.1976)). Because the Bureau was negligent in its supervision of the work site, I disagree with the majority’s conclusion that the Bureau did not breach its nondelegable duty.
By approving the district court’s ruling, the majority joins the trial court in ignoring and discounting the evidence that both the Bureau and Western admitted: that the unsupported, unreinforced canal lining was apt to collapse; that the Bureau was aware that the “chipping off” to which it agreed in order to ensure workers’ safety was not being followed; that the Bureau knew that, due to its composition, the soil in the excavation area was prone to sloughing; that the Bureau was aware that the slope in the excavation exceeded that permitted by the Construction Safety Standards which governed the project’s safety conditions; that the Bureau knew compacting was necessary; and that the night crew had compacted before. Nebraska law deems such a situation inherently dangerous. See Erickson v. Monarch Indus. Inc., 347 N.W.2d at 99 (electrical transformer is inherently dangerous); McKinstry v. Cass County, 424 N.W.2d 322, 329 (Neb.1988) (excavated trench is inherently dangerous); Crosswhite v. City of Lincoln, 175 N.W.2d 908, 911 (Neb.1970) (pipe protruding through a sidewalk creates a dangerous condition); Colvin v. John Powell & Co., 77 N.W.2d 900, 908-10 (Neb.1956) (poison-tainted molasses barrels are dangerous); Hickman v. Parks Construction Co., 76 N.W.2d 403, 407-10 (Neb.1956) (excavated trench is inherently dangerous). In an inherently dangerous situation, Nebraska law imposes a nondelegable duty on the owner of the land, in this case the Bureau, “to see that all appropriate precautions are taken by the one to perform the inherently dangerous task.... There is a nondelegable duty to see that work is done with the requisite degree of care; when the contractor fails in fulfilling its duty of care, the principal has breached its own precautionary duty.” Erickson v. Monarch Indus., Inc., 347 N.W.2d at 105 (quoting Witucke v. Presque Isle Bank, 243 N.W.2d 907, 912 (Mich.Ct.App.1976)).
Although Nebraska law deems the accident site here an inherently dangerous situation, the majority has ignored, or at least discounted, the evidence which demands this legal conclusion. Doing so facilitates its conclusion of non-negligence. The majority’s discounting of facts, however, goes beyond those that it does not mention and surfaces in its recitation of the facts on which it bases its decision. Indeed, without this additional discounting, the majority’s position would be untenable.
The majority relies on the testimony of Mark Sintek and Richard Schwisow to justify its conclusion of non-negligence. As the majority states, these two claimed that they were unaware that a night crew would be working at the site of the accident on the night it occurred. What the majority does not mention, however, is that other aspects of Sintek’s and Schwisow’s testimony are implausible and tend to discredit their entire testimony. See Murdock v. Employers Ins. of Wausau, 917 F.2d 1065, 1071 (8th Cir.1990) vacated, reh’g granted January 3, 1991 (Sintek’s and Schwisow’s testimony regarding angle of repose and exposure of canal lining contradict). Moreover, the very testimony on which the majority rests its conclusion of non-negligence is itself highly questionable.
At least three facts cast doubt on the testimony of these two individuals that they were not aware that the night crew would be working at the site on the night the accident occurred. First, undisputed evidence indicates that the night crew had compacted in the excavations prior to the night of the accident. Second, the Bureau was aware of this previous activity. Sin-*916tek, the Bureau’s safety inspector, told Schwisow, the Supervisory Construction Inspector, that the night crew had compacted before. Schwisow’s claim that he did not believe that night compacting would occur belies his own testimony that, in Schwi-sow’s words, night compacting “was being done with our knowledge.” This discrepancy is particularly startling when it is recalled that other aspects of their testimony were implausible. Third, the Bureau was also aware that the excavation was deeper than necessary, supported by an unrein-forced lining, not properly “chipped-off,” sloped in excess of the governing standards, prone to sloughing, and in need of compacting. The majority ignores these facts to conclude that Sintek’s and Schwi-sow’s testimony justify a holding of non-negligence. Because the Bureau was aware of these facts, the Bureau was negligent for not rectifying these unsafe conditions, or at least banning compacting until safe working conditions were established.2
Conclusion
Nebraska law burdened the Bureau with a duty to ensure the safety of its contractor’s workers. This burden is not evaluated under a strict liability standard. The law understands that despite numerous safety precautions, accidents still occur. Here, however, the Bureau knew that the night crew had compacted before and that the excavation was dangerous for the reasons stated above. The Bureau’s defense that it did not anticipate night compacting is simply unacceptable when the Bureau’s own Supervisory Construction Inspector testified that night compacting “was being done with our knowledge.” For this reason, and those stated in the original panel opinion, I respectfully dissent.
. Erickson's discussion of an earlier Nebraska case demonstrates that this alternative analysis is the proper one under Nebraska law. In this discussion, the Supreme Court of Nebraska noted that in Hickman v. Parks Construction Co., 76 N.W.2d 403 (Neb. 1956), "[d]efendant argued that it was not liable, as it had left the matter of protecting the site to the officer in charge of the club. We held the duty to protect against the danger to be nondelegable.” Erickson v. Monarch Indus., Inc., 347 N.W.2d at 106. Thus, according to Nebraska law, reaching the nondel-egable duty issue is not contingent on first finding that the principal retained control over the work.
. Although the majority does not reach the discretionary function exception of the Federal Tort Claims Act, 28 U.S.C. § 2680(a) (1988), I restate my agreement with the district court that the Bureau's conduct here was not protected by this exception. See Murdock v. Employers Ins. of Wausau, 917 F.2d 1065, 1073 (8th Cir.1990) vacated, reh’g granted January 3, 1991.