November 2014

Aventine Prevails in Injunction Hearing, Resolves Litigation

Our firm served as lead trial court counsel for the defendant Aventine. The matter involved two related injunction hearings several months apart. Aventine owned a 110 million-gallon nameplate ethanol plant located in Aurora, Nebraska. The facility was situated inside a double-loop railroad track adjoining the main line of the BNSF. Aventine owned the inner loop and Aurora Coop owned the outer loop. Aventine and Aurora Coop were also parties to a decades-long exclusive commodity supply agreement. When Aventine stopped purchasing corn from Aurora because of a dispute, Aurora Coop responded by placing locks on the switches that allowed trains to access the inner loop and thereby the Aventine facility. Aventine sought court intervention, seeking a preliminary injunction. Aventine’s motion was denied, with the Court noting that even though the financial impact was significant, it was compensable (2014 WL 6684875). Aventine operated by truck for months. Then, in November 2014, after 6 p.m. on a Friday night, Aventine brought in earth-moving equipment and cranes to remove a portion of the outer loop and install a diamond crossing. Even though Aurora owned the entire outer loop, Aventine owned approximately 30 feet of land under the outer loop in one location. Aventine intended to install a diamond crossing over the outer loop, connecting the inner loop directly to the BNSF main line. Aurora Coop personnel intervened to physically prevent the work, and both local and state law enforcement refused to intervene. An emergency hearing was held by phone late Friday night, with Aventine agreeing to continue preparation work but refrain from removing the portion of the outer loop until the following Monday. At the Monday preliminary injunction hearing, the court took evidence and then ruled that the diamond crossing installation could move forward (2014 WL 895669). Once the diamond crossing was installed, giving Aventine unfettered access to the BNSF main line, all pending litigation between the parties was resolved on a confidential basis. Aurora Cooperative Elevator Company v. Aventine Renewable Energy Holdings, Inc., et al., Nos. 4:12 CV 3200, 4:14 CV 3032 (D. Nebraska 2014).

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