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

Filing 54

MEMORANDUM AND ORDER regarding 51 Motion for Partial Reconsideration filed by plaintiff Aurora Cooperative Elevator Company (Aurora). Aurora's Motion for Partial Reconsideration (filing 51) is granted in part and denied in part, as set forth in the order. 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 the Motion for Partial
Reconsideration (filing 51) filed by plaintiff Aurora Cooperative Elevator
Company ("Aurora"). Aurora seeks reconsideration of the Court's order of
November 25, 2014, denying Aurora's motion for a temporary restraining
order (filing 48). Aurora does not ask the Court to reconsider its ultimate
ruling but rather, to remove or revise a portion of the order that "that might
be construed to bear on the jurisdiction of the Nebraska Public Service
Commission ('the Commission') to rule in an action currently pending
between the parties." Filing 52 at 2.
In its previous order, the Court found that the public interest would not
be served by granting Aurora the injunctive relief it sought. This finding was
based in part on the Court's determination that the public would be better
served by allowing NELLC's ethanol facility to remain productive. Filing 48
at 11. And the Court reasoned that the public interest is also served when
businesses are able to make efficient use of all available means of
transportation. The Court then noted that this latter public interest was
embodied in Nebraska law:
By statute, Nebraska law favors allowing railroads—even private
railroads—to cross one another where needed.
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).
Filing 48 at 11–12.
Aurora asks the Court to reconsider this portion of its previous order, to
the extent that it might imply that the Commission has the power to compel
a private party such as Aurora to provide access to a private rail track. That
very issue is currently pending in a proceeding before the Commission
between defendants and Aurora.
The Court's observation regarding Neb. Rev. Stat. § 75-428 was not
essential to the reasoning of its previous order. Nor was it essential to the
Court's finding that Aurora's request for injunctive relief would not serve the
public interest. The Court did not intend to express an opinion on the
jurisdiction of the Commission. So, the Court will grant Aurora's motion in
part, and deny it in part. The previous order will not be revised or amended.
But the Court will state, for the sake of clarity, that its previous order should
not be construed as providing any substantive interpretation of Neb. Rev.
Stat. § 75-428, as that issue was neither briefed nor submitted to the Court
for resolution.
THEREFORE, IT IS ORDERED:
1.

Aurora's Motion for Partial Reconsideration (filing 51) is
granted in part and denied in part, as set forth above.

Dated this 4th day of December, 2014.
BY THE COURT:

John M. Gerrard
United States District Judge

-2-