Aurora Cooperative Elevator Company v. Aventine Renewable Energy Holdings, Inc. et al

Filing 48

MEMORANDUM AND ORDER - Aurora's Motion for Temporary Restraining Order 34 is denied. Aventine's Motion to Strike 39 is denied as moot. Ordered by Judge John M. Gerrard. (SLP)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
AURORA COOPERATIVE
ELEVATOR COMPANY,
4:14-CV-3032
Plaintiff,
vs.

MEMORANDUM AND ORDER

AVENTINE RENEWABLE ENERGY
HOLDINGS, INC., AVENTINE
RENEWABLE ENERGY – AURORA
WEST, LLC,
Defendants.
This matter is before the Court on yet another dispute in the everexpanding litigation between these parties: specifically, the Motion for
Temporary Restraining Order and Request for Expedited Hearing filed by
plaintiff Aurora Cooperative Elevator Company ("Aurora"). Filing 34. Also
before the Court is a motion to strike filed by defendants Aventine Renewable
Energy Holdings, Inc., Aventine Renewable Energy – Aurora West, LLC
(collectively, "Aventine"). Filing 39. For the reasons discussed below, Aurora's
motion will be denied, and Aventine's motion will be denied as moot.1
I. BACKGROUND
The Court has set forth many of the facts relevant to this case in a
separate order, also entered today. See filing 47. The present dispute
concerns a portion of the Double Track Loop that has not played a significant
part in any of the parties' previous disputes before this Court. A small portion
of the Exterior Loop rests on land owned by Nebraska Energy, LLC
("NELLC"), an Aventine subsidiary which operates a separate ethanol plant
just east of the Double Track Loop. Filing 36-8 at ¶¶ 3–4; filing 36-5. This
sliver of NELLC's land is referred to in the parties' agreements as the
"Subject Premises." See filing 36-4 at § 1.1.

At the hearing on this matter, Aventine objected to two of the exhibits submitted by
Aurora, filings 38-27 and 38-28, on relevance grounds. The Court sustained that objection.
However, the Court has fully considered these exhibits, and their inclusion would not have
affected the Court's decision.
1

In August 2006, in connection with the execution of the Master
Development Agreement, NELLC granted an easement over the Subject
Premises to both Aventine and Aurora. Filing 36-8 at ¶¶ 3–4; filing 36-5.
That easement granted Aurora and Aventine the right to "construct,
maintain, operate, use and replace the Double Track Loop, including, without
limitation, an easement of ingress and egress thereto." Filing 36-4 at ¶ 1.1.
As the Court has described in its previous order denying Aventine's
motion for injunctive relief, Aurora has been blocking Aventine's access to the
Burlington Northern Santa Fe ("BNSF") main line since February 2014. See
case no. 4:12-cv-3200, filing 46 at 4–5. Aurora has done this by installing
locks on a portion of crossover tracks running between the Exterior and
Interior Loop and between the Exterior Loop and the BNSF main line. See
case no. 4:12-cv-3200, filing 46 at 2.
Since then, Aventine has been working to find an alternative route to
shuttle train cars between its ethanol plant and the BNSF main line. And by
November 2014, Aventine had found a way, or at least a step in that
direction.2 Together with NELLC, Aventine planned to construct a "diamond
crossover" track on a portion of the Exterior Loop located on NELLC's land,
i.e., on the Subject Premises. NELLC and Aventine's plan included the
following undertakings: (1) installing a switch on a portion of the Interior
Loop situated on land owned by Aventine; (2) installing a switch on a portion
of NELLC's separate tracks, situated on land owned by NELLC and not
located on the Subject Premises; and (3) modifying a portion of the Exterior
Loop lying on the Subject Premises to create a diamond crossing track that
would extend approximately between the first switch and the second switch
and cross over the Subject Premises. Filing 36-8 at ¶ 6; filing 36-6. In other
words, the diamond crossing would connect the Interior Loop to an existing
set of tracks owned by NELLC by intersecting and crossing over a small
portion of the Exterior Loop. Filing 36-9 at ¶ 5.
Mark Beemer, the CEO of Aventine Holdings and president of Aventine
West and NELLC, states that he personally directed the engineering and
construction firms working on the project to ensure that the construction and
installation would not require any entry onto land owned by Aurora. Filing
36-8 at ¶¶ 2, 8. And representatives from both firms have averred that the

It is still not entirely clear to the Court whether Aventine's new project will actually
enable it to connect to the BNSF main line. The way Aventine has described the project, it
will simply allow Aventine and NELLC to shuttle train cars between their facilities, over a
portion of tracks owned by NELLC and part of the Interior Loop. See, e.g., filing 36-8 at ¶¶
7, 18; filing 36-9 at ¶ 5. But from the beginning of this dispute, Aurora has acted as if this
project will immediately enable Aventine to connect directly to the BNSF main line. For the
sake of argument, the Court has assumed that to be the case.
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project will not require any work to be performed on land owned by Aurora.
Filing 36-9 at ¶ 7; filing 36-10 at ¶ 7.
According to Beemer, the diamond crossing will not cause any
significant interference with Aurora's ability to use the Exterior Loop. Filing
36-8 at ¶ 11. Of course, not everyone can use the crossing at once: when
Aventine or NELLC would use the crossing to move trains, Aurora would
have to wait. Filing 36-8 at ¶ 11; filing 36-9 at ¶ 12; filing 36-10 at ¶ 12. But
Beemer averred that, based on his knowledge of the operations of both the
NELLC and Aventine plants, such crossings would occur no more than six
times a week, with each crossing lasting approximately 1 hour. Filing 36-8 at
¶ 11.
Aventine and NELLC began construction on Friday, November 21, at
around 6:00 p.m. Filing 36-8 at ¶ 4; filing 38-32 at ¶ 11. Aventine did not
notify Aurora of its intentions. Filing 38-32 at ¶ 12. Aventine does note that
the parties have been conducting continuous video surveillance of each
other's properties, and Aventine contends that Aurora must have had some
awareness that the project was going to begin, based on the equipment that
had been arriving and preparatory work that had been conducted in the
preceding weeks. Filing 36-8 at ¶ 13. But Aventine and NELLC have
admitted that they never bothered to pick up the phone to call Aurora and let
them know of their plans. For its part, Aurora denies that it knew or
suspected that Aventine or NELLC were about to begin a construction project
that would involve a modification of the Exterior Loop. Filing 38-32 at ¶ 12.
In any event, shortly after Aventine was about to begin construction in
earnest, Aurora also sprang into action. Around 6:00 p.m. on that Friday, an
Aurora employee noticed Aventine personnel beginning to move machinery,
equipment, and rocks into position near the Exterior Loop, with the apparent
intention of cutting the loop and constructing a crossover track. Filing 38-32
at ¶ 11. Aurora employees also noticed that Aventine had placed several blue
flags on the Exterior Loop—a signal to BNSF that the track was out of
service. Filing 38-32 at ¶ 13.
In response, Aurora personnel began placing vehicles, equipment, and
themselves on the Exterior Loop in an effort to block Aventine's efforts. Filing
38-32 at ¶ 15. Aventine claims that Aurora's response created a safety
hazard, as Aurora employees were placing vehicles in unsafe positions,
running up to heavy equipment as it was being operated, and attempting to
instigate confrontations with members of the construction crew. Filing 36-8
at ¶ 15. At some point, Aurora also called various law enforcement officers to
the scene. Filing 36-8 at ¶ 14.
Fortunately, the tense situation deescalated. At around 9:30 p.m. that
night, Aurora filed a motion for a temporary restraining order, essentially
asking that the Court order Aventine to cease work on the project. Filing 34.
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And at around 11:00 p.m., a telephonic hearing was held. Following that
hearing, the Court entered an interim order directing Aventine to avoid
interfering with Aurora's access to and use of the Exterior Track Loop and to
not begin construction or installation of the diamond crossing. Filing 35.
Since then, the parties have had an opportunity to brief the matter and
explain how this confrontation arose. Aurora has explained that it found the
sudden closure of the Exterior Track Loop to be particularly worrisome
because a large BNSF shuttle train had previously been scheduled to arrive
at Aurora's facility to pick up Aurora's grain, with the pickup to occur at some
time on that Friday, Saturday, or Sunday. And in order for that arrangement
to work, the train would have needed access to the Exterior Loop. Filing 3832 at ¶ 14.
Aventine has explained that it timed the construction in order to
minimize disturbances to Aurora, and that construction was intended to be
complete by the following Tuesday morning. Filing 36-8 at ¶¶ 8, 18. (It is not
clear whether Aventine knew about Aurora's scheduled pickup from BNSF.)
Representatives from the engineering and construction firms have averred
that the construction would have caused the portion of the Exterior Loop to
be inaccessible by rail for between 6 to 10 hours. Filing 36-9 at ¶ 10; filing 3610 at ¶ 10. And Beemer stated that work on the Exterior Loop would have
been completed by Saturday morning. Filing 36-8 at ¶ 8. He avers that
NELLC and Aventine had no intention of delaying or obstructing trains on
their way to or from Aurora's facility. Filing 36-8 at ¶ 18.
On November 24, 2014, the parties appeared before the Court for a
hearing on Aurora's motion, and the matter is now fully submitted and ripe
for disposition.
II. ANALYSIS
When deciding whether to issue a preliminary injunction, the Court
weighs the four Dataphase factors: (1) the threat of irreparable harm to the
movant; (2) the state of the balance between this harm and the injury that
granting the injunction will inflict on other parties; (3) the probability that
the movant will succeed on the merits; and (4) the public interest. Johnson v.
Minneapolis Park & Recreation Bd., 729 F.3d 1094, 1098 (8th Cir. 2013)
(citing Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981)
(en banc)). A preliminary injunction is an extraordinary remedy, and the
movant bears the burden of establishing its propriety. Roudachevski v. AllAmerican Care Centers, Inc., 648 F.3d 701, 705 (8th Cir. 2011); see also H&R
Block Tax Servs. LLC v. Acevedo-Lopez, 742 F.3d 1074, 1077 (8th Cir. 2014).
Aurora seeks an order prohibiting Aventine and NELLC from "cutting
into or otherwise interfering with Aurora Co-op's quiet enjoyment of the
Exterior Track Loop in accordance with the terms of the Double Track Loop
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Easement and Use Agreement." Filing 34 at 1. The Court finds that Aurora is
not entitled to the injunction it seeks. Aurora has not demonstrated a
likelihood of success on the merits, nor has it shown a threat of irreparable
harm to any legitimate interest. Rather, the balance of the harms weighs
against injunctive relief, as does the public interest.
A. LIKELIHOOD OF SUCCESS ON THE MERITS
Aventine argues that NELLC has the right to build the diamond
crossing under the NELLC Track Easement and Use Agreement (the
"NELLC Easement Agreement"). The Court agrees. And because Aventine
has shown that it and NELLC are acting within their rights under the
relevant agreements, Aurora can show little to no likelihood of success on the
merits.
In the NELLC Easement Agreement, NELLC granted Aurora and
Aventine an
easement on, over, under and upon that portion of the NELLC
Premises3 that is more particularly set forth on Exhibit B which
is attached hereto (the "Subject Premises") to construct,
maintain, operate, use and replace the Double Track Loop,
including, without limitation, an easement of ingress and egress
thereto and the right to use and occupy the NELLC Premises on
a temporary basis to the extent necessary to construct, operate,
maintain and replace the Double Loop Track[.]
Filing 36-4 at § 1.1. This easement was expressly subject to any conditions
set forth in the remainder of NELLC Easement Agreement. Filing 36-4 at §§
1.1, 4.1. The agreement further provided that Aurora and Aventine "shall
have the quiet and undisturbed possession of the Subject Premises during the
Term hereof without any interruption by NELLC or any person claiming by,
under or through NELLC, except as is otherwise expressly provided herein."
Filing 36-4 at § 4.1 (emphasis supplied).
That brings the Court to Article XX of the NELLC Easement
Agreement, which governs NELLC's reserved rights. That portion provides,
in relevant part:
NELLC may enter upon the Subject Premises and exercise the
following rights without notice and without liability to Aurora
Co-op and Aventine for damage or injury to property, person or
The "NELLC Premises" refers to NELLC's property adjacent to the Double Track Loop.
Filing 36-4 at 1.
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business and without affecting an eviction or disturbance of the
use or possession of Aurora Co-op and Aventine or giving rise to
any claim, except as more specifically provided herein:
....
B.

At reasonable times, and except in the case of
emergencies, upon reasonable prior notice and to
make at its own expense, repairs, alterations,
additions and improvements, structural or otherwise,
in or to the Subject Premises or part thereof, and any
adjacent buildings, equipment, streets, alleys or other
improvements, and during such operations to take
into and through the Subject Premises or any part
thereof, all materials required, and to temporarily
close or suspend operation of entrances or other
facilities, provided only that such action shall not
have a material adverse effect on the use and right to
quiet enjoyment of the Subject Premises by Aurora
Co-op and Aventine;

....
D.

At reasonable times, to take any and all reasonable
measures, including inspections or the making of
repairs, alterations, additions and improvements to
the Subject Premises or to the NELLC Premises that
are necessary or desirable for the safety, protection,
operation or preservation of the Subject Premises or
the NELLC Premises;

Filing 36-4 at § 20.1.
Aventine contends that NELLC is entitled, under § 20.1(D), to enter
onto the Subject Premises and construct the proposed diamond crossing.
Aventine argues that the proposed crossing is an alteration or addition that
satisfies both prerequisites of § 20.1(D): that it be (1) desirable or necessary
(2) for the operation of the Subject Premises or NELLC Premises. The Court
finds this to be a sensible reading of the contract, and finds that NELLC has
satisfied both prerequisites of § 20.1(D).4
Aurora argues that, despite its language to the contrary, what § 20.1(D) really means is
that any alteration of the Subject Premises must be for the benefit of the Subject Premises,
4

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Aventine has submitted uncontested evidence that NELLC's ethanol
facility—and thus the NELLC Premises—will benefit from the diamond
crossing. With the crossing, NELLC will be able to shuttle railcars and
material between its facility and Aventine's facility. Filing 36-8 at ¶ 7.
NELLC finds that to be a benefit to its facility, and Aurora is not in a position
to claim otherwise. And because the NELLC Premises will benefit from these
alterations, NELLC is entitled to include that this alteration is, in fact,
"desirable." Aurora argues that Aventine is the moving force behind the
project, and that NELLC's claimed benefits are a mere pretext. But Aurora
has not contradicted NELLC's evidence, which shows that NELLC will also
benefit from the project. "Desirable" is not a high bar to clear—and NELLC is
allowed, under the agreement, to make alterations that it has reasonably
deemed desirable.
Even if the project were not authorized under § 20.1(D), the Court
finds that, moving forward, NELLC's proposed construction is also
authorized by § 20.1(B). That section authorizes NELLC to make alterations
or additions to the Subject Premises, even without a showing of a benefit to
the NELLC Premises, provided that NELLC gives Aurora reasonable notice,
and provided the project does not have a materially adverse effect on Aurora's
right to the use and quiet enjoyment of the Subject Premises. The
modification of the tracks themselves will not significantly affect Aurora's
ability to use the Subject Premises—so long as Aventine and NELLC provide
Aurora with reasonable notice of any construction project, and so long as any
resulting downtime of the Exterior Loop does not significantly interfere with
Aurora's business. And the Court finds that the proposed use of the new
crossing by Aventine and NELLC—for a total of approximately 6 hours each
week—cannot, by any stretch of the imagination, be considered "materially
adverse" to Aurora's right to the use and quiet enjoyment of the Subject
Premises.
Aurora has raised a number of counterarguments. The Court has
considered them all, and finds each to be without merit. The Court does not
find it necessary to separately address each argument in this Memorandum
and Order, and will only expressly address a few of them.
Aurora argues that Aventine's usage of the Exterior Track Loop is
governed by the Double Track Loop and Use Agreement (the "Double Loop
Agreement"). Aurora points to a portion of that agreement which provides
and that it is not enough if the alteration benefits the NELLC Premises. Filing 37 at 12.
But Aurora's argument is contradicted by the plain language of § 20.1(D), and moreover,
makes little sense. The NELLC Premises belong entirely to NELLC. NELLC does not need
an exception in its easement agreement to permit it to do things on portions of its own land
that are not subject to the easement.

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that "[t]he Exterior Track Loop and the switches and crossovers between the
BNSF main line and the Exterior Track Loop shall generally be reserved for
the exclusive use of Aurora Co-op . . . ." Filing 38-3 at § 3. NELLC was not a
signatory to this agreement. And although Aventine was, the Double Loop
Agreement poses no obstacle to NELLC or Aventine's construction efforts, nor
to their proposed future uses of the crossing.
First, the Double Loop Agreement may govern the usage of the Double
Track Loop generally, and the parties' rights and obligations with regard to
the tracks themselves. But that agreement is not the primary source of the
parties' rights and obligations with respect to land owned by NELLC. Rather,
the crossing at issue lies on the Subject Premises, which is governed
primarily by the NELLC Easement Agreement. Aventine has a right to enter
upon the Subject Premises by virtue of that agreement. NELLC granted both
Aurora and Aventine an easement, and Aurora cannot interfere with
Aventine's use and enjoyment of that easement any more than Aventine can
interfere with Aurora's use and enjoyment.
Second, as to the tracks themselves, the proposed construction or use
of the crossing will not violate the Double Loop Agreement. To the extent that
crossing over a single portion of the Exterior Loop can even be considered a
"use" of the Exterior Loop, the Exterior Loop will "generally" (and in fact, for
the overwhelming majority of the time) remain available for Aurora's
exclusive use. Aventine proposes to cross over the Loop for a total of 6 hours a
week, which leaves the remaining 162 hours each week (96 percent of the
time) for Aurora.
Aurora next argues that Aventine has breached the Double Loop
Agreement by modifying the Interior Loop. Filing 37 at 9–10. Aurora first
claims that the Double Loop Agreement does not permit any alterations to
the Double Track Loop. But Aurora fails to cite to any portion of the
agreement for this broad proposition. Instead, Aurora points to a provision (§
12) that grants the parties easements over each other's land to inspect,
maintain, repair, or replace portions of the track loop that each party is
required to inspect and maintain under the agreement. Filing 38-3 at § 12.
Under that section, Aurora points out, Aventine has the right to "inspect,
maintain, repair, and replace"—but not to alter—the Interior Track Loop.
But that section is not applicable to this dispute, nor will its text bear
the reading that Aurora seeks to force upon it. Section 12 of the Double Track
Loop Agreement concerns the parties' rights and obligations when engaged in
construction or repair activities that require them to enter into land held by
the other party. That says nothing about what they may do to their own
property. And in any event, Aventine has presented uncontested evidence
that none of its activities are taking place on land owned by Aurora.
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Aurora next points to § 3.1 of the NELLC Easement Agreement, which
provides that:
[f]or and during the Term of this Agreement, use of the Subject
Premises by Aurora Co-op and Aventine pursuant to this
Agreement and the easement granted herein shall be limited to
the construction, maintenance, operation, use and replacement of
the Double Track Loop and for other purposes which are a usual
and customary part thereof or incidental thereto, and for no other
purpose.
Filing 36-4 at § 3.1 (emphasis supplied). But the Court does not see anything
about § 3.1 that poses a problem for Aventine. Using a portion of the Exterior
Loop to move railcars to and from the Interior Loop would certainly be an
"usual and customary" use of a railroad track generally, and the Double
Track Loop in particular.
Finally, Aurora points to cases from other jurisdictions for the general
proposition that, while the fee owner can use the easement located on its land
in ways that do not interfere with the easement owner's use, the rule is
different for railroad easements, which give the easement owner the right to
exclusive use of the servient premises—even as against the fee owner. See,
e.g., State v. Beeson, 232 S.W.3d 265, 276–77 (Tex. Ct. App. 2007). That is all
well and good. But here, the language of the easement itself reserves certain
rights to NELLC, including the right to construct and use the diamond
crossing. Aurora's railroad easement has never been exclusive, and has
always been shared with Aventine and NELLC.
In sum, Aurora has shown little likelihood of success on the merits of
this issue. But Aurora (and Aventine) should bear in mind that the matter
before the Court really is a narrow issue: whether NELLC and Aventine can
build a small crossing, and then use that crossing briefly each week to move
rail cars to and from NELLC's property. If Aventine or NELLC's usage of the
crossing begins to materially interfere with Aurora's usage and enjoyment of
the crossing, or if they seek to expand their operations onto the Exterior
Loop, then Aurora might very well be entitled to relief, in the form of an
injunction or money damages, or both.
B. IRREPARABLE HARM
To show a threat of irreparable harm, the movant must show that the
harm is certain and great and of such imminence that there is a clear and
present need for equitable relief. Roudachevski, 648 F.3d at 706. Stated
differently, the irreparable harm alleged by the movant "must be actual and
not theoretical." Brady v. Nat'l Football League, 640 F.3d 785, 794 (8th Cir.
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2011). And harm is not irreparable when a party can be fully compensated for
its injuries through an award of damages. Gen. Motors Corp. v. Harry
Brown's, LLC, 563 F.3d 312, 319 (8th Cir. 2009).
Aurora claims that, absent the requested injunction, it will be
irreparably harmed in two ways. First, Aurora briefly attempts to rely on the
general proposition that (in some circumstances) trespass or injury to real
property is considered an irreparable harm. See, e.g., F. Burkart Mfg. Co. v.
Case, 39 F.2d 5 (8th Cir. 1930). But Aurora cites only one case in support of
its position: O'Connor v. Kaufman, 616 N.W.2d 301, 310 (Neb. 2000).
Kaufman is readily distinguishable. In that case, the easement granted the
dominant parcel certain access to a water well. The owners of the servient
parcel had removed the well, completely frustrating the purpose of the
easement. See id. at 306. Here, by contrast, Aurora retains near-complete use
of its easement—subject only to limited and transient interruption when
Aventine or NELLC seek to cross the track. The Court is not convinced that
this slight use of the easement shows per se irreparable harm. Neither the
track (nor the Subject Premises) are actually being injured (only upgraded).
And Aventine is crossing land owned by NELLC on an easement it shares
with Aurora—so there is no trespass.
Aurora's real argument is that if Aventine can access the BNSF main
line it will undercut the leverage Aurora has tried to exert over Aventine by
means of its blockade.5 Filing 37 at 16. This leverage, Aurora insists, has
been part and parcel of the parties' contractual relationship from the very
beginning. Aurora points to the fact that Aventine's access to the Exterior
Loop under the Double Loop Agreement is conditioned on the existence of an
exclusive grain supply agreement with Aventine. Aurora maintains that it
needs this leverage in order to be certain that Aventine maintains a strong
incentive to abide by its obligations under the Grain Supply Agreement. So,
Aurora argues, if Aventine is allowed to evade the blockade, Aurora will be
"entirely deprived of the benefit of the bargain that was built into the overall
agreement with Aventine." Filing 37 at 16. And this harm, according to
Aurora, would be "tremendous and impossible fully to calculate." Filing 37 at
16.
Aurora's argument has a gap—the same gap that has existed, from the
very beginning, in the Double Track Loop itself. Aurora never owned all of
Again, it is not clear that the current project will actually enable Aventine or NELLC to
access the BNSF main line, or if it is simply one step in a larger plan toward that ultimate
goal. If the current proposed undertakings will not result in direct access, then Aurora's
claimed irreparable harms are not only reparable but also not sufficiently imminent to
warrant injunctive relief. For the sake of argument, the Court will assume that the current
project will (or will soon) enable Aventine to connect to the BNSF main line.
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the real estate surrounding Aventine. From the beginning, NELLC owned a
portion of the southeast corner. It is true that, when the parties' agreements
were signed in 2006, what would become Aventine's parcel was not connected
to the BNSF main line. But nothing in the parties' agreements forbade
NELLC or Aventine from taking steps to change that.
At the hearing on Aurora's motion, the Court repeatedly asked Aurora
to explain how the loss of this leverage amounted to an irreparable harm that
could not be compensated by money damages. Aurora did not provide a
convincing response. The leverage Aurora seeks to exert bears upon a
number of complex commercial relationships between itself and Aventine.
While those commercial relationships—from the Grain Supply Agreement to
the real estate option that Aurora seeks to exercise—may be complex, they all
deal with quantifiable commodities and profits. At this time, Aurora has not
shown an imminent threat of irreparable harm.
C. REMAINING DATAPHASE FACTORS
The Court need not dwell long on the remaining Dataphase factors.
Failure to show irreparable harm is an independently sufficient ground upon
which to deny a temporary restraining order. Watkins Inc. v. Lewis, 346 F.3d
841, 844 (8th Cir. 2003); see also Novus Franchising, Inc. v. Dawson, 725 F.3d
885, 893 (8th Cir. 2013). That said, the remaining factors also counsel against
granting Aurora the injunction it seeks.
The balance of harms does not favor Aurora. Aurora has shown only
that it will lose leverage it seeks to exert over Aventine. Whether this will
actually result in any concrete detriment to Aurora remains to be seen. In
other words, Aurora's harm is speculative at best. But if the injunction is
issued, other parties—namely, NELLC—will face immediate, concrete harm.
As the project is delayed, NELLC continues to accrue costs. Filing 36-8 at ¶
16. And if the project is not complete by November 26, 2014, NELLC may be
forced to reduce ethanol production rates, as by then it will have reached its
full ethanol storage capacity. Filing 36-8 at ¶ 16. These actual, imminent
losses (even if somewhat self-inflicted) outweigh the speculative harms
posited by Aurora.
Finally, the public interest is better served by allowing the crossing
project to continue. Aurora is the sole beneficiary of an NELLC shut-down.
The public is better served by allowing NELLC's ethanol facility to remain
productive. And the public interest is also served when businesses are able to
make efficient use of all available means of transportation. This public
interest is also Nebraska's official public policy. By statute, Nebraska law
favors allowing railroads—even private railroads—to cross one another
where needed.
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Each owner of a railroad may cross, intersect, join, and unite its
railroad with any other railroad at any point on its route and
upon the grounds of the owner of such other railroad with the
necessary turnouts, sidings, and switches and other conveniences
in furtherance of the objects of its connection.
Neb. Rev. Stat. § 75-428; see also Neb. Rev. Stat. § 75-402(2) (defining
"railroad" as any railroad track located within the State of Nebraska).
III. CONCLUSION
At this time, Aurora is not entitled to injunctive relief. The proposed
crossing will not result in any significant interference with Aurora's protected
interests. And the fact that Aventine has possibly improved its bargaining
position does not entitle Aurora to injunctive relief. But Aventine has no
cause for celebration. In case it has not been made abundantly clear, the
Court's patience is running thin for all parties involved. Much of this
dispute—or certainly its unneeded urgency—could have been avoided with a
few simple phone calls between the parties. Moving forward, the Court
expects that the parties will endeavor in good faith to work out their
differences in more reasonable, responsible, and productive ways. Until the
parties have finally resolved their various disputes, they will remain
neighbors, and as such, they must find a way to get along without police or
Court intervention on a routine basis.
THEREFORE, IT IS ORDERED:
1.

Aurora's Motion for Temporary Restraining Order (filing
34) is denied.

2.

Aventine's Motion to Strike (filing 39) is denied as moot.

Dated this 25th day of November, 2014.
BY THE COURT:

John M. Gerrard
United States District Judge

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