ACCEPTED
03-14-00198-CV
4356321
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/3/2015 4:04:06 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00198-CV
IN THE THIRD COURT OF APPEALS
at AUSTIN, TEXAS
CITY OF NEW BRAUNFELS, TEXAS,
Defendant-Appellant
v.
RECEIVED IN
STOP THE ORDINANCES PLEASE, W.W. GAF, INC.,
3rdD/B/A
COURT OF APPEALS
AUSTIN, TEXAS
ROCKIN “R” RIVER RIDES, TEXAS TUBES, TOURIST ASSOCIATED
3/3/2015 4:04:06 PM
BUSINESSES OF COMAL COUNTY; UNION RIVER LLC d/b/a LANDA
JEFFREY D. KYLE
RIVER TRIPS; CHUCK’S TUBES; WATERPARK MANAGEMENT, INC.;
Clerk
TRI-CITY DISTRIBUTORS, LP and STONE RANDALL WILLIAMS,
Plaintiffs-Appellees
Appeal from the 207th District Court of Comal County, Texas
Cause No. C2007-0387B
BRIEF OF AMICI CURIAE IN SUPPORT OF APPELLANT
William G. Bunch
State Bar No. 03342520
bill@sosalliance.org
Kelly D. Davis
State Bar No. 24069578
kelly@sosalliance.org
Save Our Springs Alliance
905 W. Oltorf St., Ste. A
Austin, Texas 78704
T: 512-477-2320
F: 512-477-6410
Attorneys for Amici Curiae the Texas Rivers Protection Association,
San Marcos River Foundation, Greater Edwards Aquifer Alliance, and
Save Our Springs Alliance
TABLE OF CONTENTS
INDEX OF AUTHORITIES……………………………………………………………………………..ii
I. AMICUS DISCLOSURE………………………………………………………………………….……1
II. BACKGROUND………………………………………………………………………………………...1
A. The Comal and Guadalupe Rivers………………………………………………………1
B. Amici’s Interests………………………………………………………………………………..3
III. ARGUMENT…………………………………………………………………………………………...6
A. Appellants have failed to meet their burden of showing, with
unmistakable clarity, that the legislature intended to preempt the
ordinances...…………………...………………………………………………………………….6
B. The Ordinances are a valid exercise of the City’s police power because
they protect the public health, safety, and welfare………………………………8
C. Evidence in the record shows that the Ordinances have the intended
effect of curbing trash in the Rivers…………………………………………………..10
D. Home-rule authority must be preserved to ensure issues are addressed
effectively and with community input………………………………………………12
E. The Ordinances are a valid exercise of the City’s police powers over
navigable waters and are not preempted by the Texas Constitution nor
the Texas Parks and Wildlife Code………………………………………………...….15
F. Texas Local Government Code § 551.002 provides further support that
the Ordinances are a valid exercise of the City’s police power…….……...19
IV. CONCLUSION……………………………………………………………………………………….21
CERTIFICATE OF COMPLIANCE……………………………………………………...………….22
CERTIFICATE OF SERVICE………………………………………………………………………...23
i
INDEX OF AUTHORITIES
CASES
Carrithers v. Terramar Beach Cmty. Imp. Ass’n, Inc., 645 S.W.2d 772 (Tex.
1983)…………………………………………………………………………………………….18, 18 n.5
City of Brookside Vill. v. Comeau, 633 S.W.2d 790 (Tex. 1982)……….…7, 9, 13, 14
City of Houston v. Bates, 406 S.W. 3d 539 (Tex. 2013).………………………..……7, 21
City of Sherman v. Mun. Gas Co., 127 S.W. 2d 193 (Tex. 1939)…………….……6 n.2
City of Waxahachie v. Watkins, 275 S.W. 2d 477 (Tex. 1955)……………………..…..8
Dallas Merch.’s & Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489 (Tex.
1993)………………………………………………………………………………………………...……6, 7
Diversion Lake Club v. Heath, 86 S.W. 2d 441 (Tex. 1935)………15, 15 n.4, 16, 18
Edge v. City of Bellaire, 200 S.W. 2d 224 (Tex. Civ. App.—Galveston 1947, writ
ref’d)………………………………………………………………………………………………………..…9
Gorieb v. Fox, 274 U.S. 603 (1927)………………………………………………………………13
Guadalupe-Blanco River Auth. v. Pitonyak, 84 S.W. 3d 326 (Tex. App.—Corpus
Christi 2002, no pet.)……………………………………………………………………...……16, 17
Heard v. Town of Refugio, 103 S.W. 2d 728 (Tex. 1937)………………….……………18
Hunt v. City of San Antonio, 462 S.W.2d 536 (Tex. 1971)………………………………..7
In re Sanchez, 81 S.W. 3d 794 (Tex. 2002)…………………………………………………..21
Int’l Ass’n of Fire Fighters, Local 1173 v. City of Baytown, 837 S.W.2d 783 (Tex.
App.—Houston [1st Dist.] 1992, writ denied)…………………………………………….…7
Lower Colo. River Auth. v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975)…......6
ii
Proctor v. Andrews, 972 S.W. 2d 729 (Tex. 1998)…………………………………………..6
Selman v. Wolfe, 27 Tex. 68 (1863)………………………………………………………….....17
STOP v. City of New Braunfels, 306 S.W. 3d 919 (Tex. App.—Austin 2010, no
pet.)……….…………………………………………………………………………………………………14
Tex. River Barges v. City of San Antonio, 21 S.W. 3d 347 (Tex. App—San
Antonio 2000, pet. denied)………………………………………………………8-9, 15, 17, 18
Welder v. State, 196 S.W. 868 (Tex. Civ. App.—Austin 1917, writ ref’d)..…18 n.5
STATUTES AND CITY ORDINANCES
Tex. Health & Safety Code § 361.0961……………………………………..……………...…20
Tex. Loc. Gov’t Code § 551.002……………………………………………….….19, 20, 20 n.6
Tex. Parks & Wild. Code § 1.011(c)…………………………………………………………….15
New Braunfels, Tex., Code ch. 86, art. I, § 86-14(1) (2014) (“Cooler
Ordinance”)……………………………………………………………………………………..…passim
New Braunfels, Tex., Code ch. 86, art. I, § 86-14(2) (2014) (“Disposable
Container Ordinance”)………………………………………………………………………..passim
Austin, Tex., Code of Ordinances, Title 6, ch. 6-6, § 6-6-2……………….……………13
CONSTITUTIONAL & CHARTER PROVISIONS
Tex. Const., art. XI, § 5………………………………………………………………………..………..6
Tex. Const. art. XVI, § 59………………………………………………………………..…………..15
New Braunfels City Charter § 2.01………………………………………………………….……8
iii
ADDITIONAL SOURCES
THE TEXAS ALMANAC ONLINE, available at www.texasalmanac.com.........................1-3
TEXAS STATE HANDBOOK ONLINE, available at
www.tshaonline.org/handbook/online..........................................................................1-3
Texas Municipal League, Handbook for Mayors and Councilmembers (2013
ed.)……………………………………………………………………………………………………………..6
6A EUGENE MCQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS § 24.10 (3rd ed.
1984)…………………………………………………………………………………………………..……..9
Greg Bowen, Holiday Garbage up 438 Percent, NEW BRAUNFELS HERALD-ZEITUNG,
July 2, 2014……………………………………………………………………………...……………….11
Asher Price, Researchers Find Carcinogen Dropoff in Lady Bird Lake Following
Ban, AUSTIN AMERICAN-STATESMAN, June 16, 2014………………………...……………….14
Tex. Comm’n on Envtl. Quality, Gem Seal of Tex., Inc. v. City of Austin, Docket
No. 2006-0056-MIS, Exec. Dir.’s Reply Br. (May 25, 2007)………………….….13, 14
iv
I. AMICUS DISCLOSURE
This brief is tendered on behalf of amici curiae the Texas Rivers
Protection Association, San Marcos River Foundation, Greater Edwards
Aquifer Alliance, and Save Our Springs Alliance, Inc. The Texas Rivers
Protection Association made a donation to Save Our Springs Alliance to help
cover the Alliance’s costs of preparing this brief. See Tex. R. App. P. 11(c). The
remainder of costs for preparation was covered by general donations to the
Save Our Springs Alliance from individuals, businesses, and foundations.
II. BACKGROUND
A. The Comal and Guadalupe Rivers 1
The Comal River is the shortest river in Texas, at two-and-a-half miles,
and is contained entirely within the City of New Braunfels. As a spring-fed
river, the Comal begins at Comal Springs in Landa Park and flows southeast
through New Braunfels until it empties into the Guadalupe River. The Comal
Springs—the largest springs in Texas and the American Southwest—are
located in New Braunfels’s Landa Park, a popular picnic and recreation spot
1The information in this section comes from first-hand knowledge of the rivers, as well as
the following sources: THE TEXAS ALMANAC ONLINE, www.texasalmanac.com, and the TEXAS
STATE HANDBOOK ONLINE, www.tshaonline.org/handbook/online , both published by the
Texas State Historical Association, articles on “Comal Springs,” “Secondary Streams of
Texas,” “Comal County,” “Guadalupe River,” and “New Braunfels.” Last accessed Feb. 25,
2015.
1
since the 1860’s and the home of seventy-six species of trees, including
several ancient live oaks.
Unsurprisingly, the clear water emanating from the springs has
attracted people to the area for hundreds of years. These springs were a
favorite camping place for native Indian tribes, and many artifacts and burial
mounds have been found. In the mid-1800’s, German pioneers established the
City of New Braunfels (the City), which soon became the new German center
for Texas. These industrious settlers began harnessing the Comal Springs for
power, and the German heritage of the area is still celebrated today.
The Comal River is one of three major tributaries to the Guadalupe
River, with their juncture in the middle of town. Although the Guadalupe is
quite a bit larger, at 409 miles, it holds historic significance for the City as the
site of one of the earliest Franciscan missionaries. It is difficult to overstate
the rivers’ contribution to New Braunfels’s quality of life and economic
prosperity.
Today, the Comal and Guadalupe Rivers support a variety of
recreational activities, including fishing, swimming, river tubing, rafting,
kayaking, and driving along scenic river parkways. The popular water park
resort Schlitterbahn’s sole source of water is the Comal River, and the nearby
Comal Baths have been the site of city-conducted swimming lessons since
2
1900. The Guadalupe River hosts the primary trout fishery in the state,
supporting a thriving sport-fishing industry that relies on the health of the
ecosystem. Because of the rivers’ beauty and popularity as a recreation area,
owners of riverfront properties may choose to rent their property out to
tourists, use it as a vacation home, or live there with full-time access to the
river. In addition to their economic and recreational value, the Comal and
Guadalupe Rivers support a variety of plant and animal life unique to Central
Texas’ spring-fed rivers. With so much to see and do, it is easy to see why
each year thousands of tourists come to enjoy New Braunfels and its rivers.
Among those with a strong interest in keeping Texas rivers clean are the four
amici curiae represented in this brief.
B. Amici’s Interests
As organizations concerned with the ecological integrity and economic,
recreational, cultural, and aesthetic value of the waterways that mark the
Texas Hill Country, amici curiae have a fundamental interest in ensuring that
home-rule cities and their citizens maintain the authority to legislate at the
local level for the purposes of protecting water quality and decreasing
pollution for the benefit of all people.
The Texas Rivers Protection Association (TRPA) is a non-profit
organization led by pro-river volunteers across the State representing
3
landowner coalitions, conservationists, canoe and kayak clubs, and fishing
associations. Its members represent a broad and diverse cross-section of
conservation and recreation groups and individuals with a common concern
for the quality of Texas’s natural rivers. TRPA’s mission is to protect the flow,
water quality, and natural beauty of the rivers of Texas, promote awareness of
the rights of the public and riparian landowners and foster a mutual respect,
educate members and the public about conserving Texas rivers, and acquire
property and easements to provide access to rivers.
The San Marcos River Foundation (SMRF) is a non-profit formed in
1985 by San Marcos citizens, riverside landowners, the San Marcos Lions
Club, and other civic groups with a mission to preserve public access to the
San Marcos River and protect the flow, natural beauty, and purity of the river
and its watershed for future generations. SMRF works toward this goal with
educational events, river cleanups, purchasing riparian land, and water-
quality testing.
The Greater Edwards Aquifer Alliance (GEAA) is an organization
dedicated to protecting and preserving the Edwards Aquifer and the Hill
Country’s scenic beauty and cultural heritage for the benefit of all residents,
especially the 1.5 million Texans who rely on the Aquifer for drinking water.
Its members include citizen-based conservation groups as well as groups from
4
the religious, business, and historic preservation communities, stretching
from Del Rio to Austin. GEAA groups work locally with a common
commitment to education and action based on sound science and sustainable
economic principles.
Save Our Springs Alliance, Inc. is a non-profit, charitable organization
dedicated to the preservation of the Edwards Aquifer, its springs and
contributing streams, and to the natural and cultural heritage of the Hill
Country region, with a special emphasis on Barton Springs.
Consistent with the mission of these organizations, amici support New
Braunfels’s authority to enact the ordinances at issue here. These public
health and safety ordinances help preserve the economic, cultural, spiritual,
recreational, and ecological value of the Comal River and that portion of the
Guadalupe River within the City’s jurisdiction. Maintaining the purity and
safety of these majestic ecosystems through local regulation will enhance the
public’s use and enjoyment of these rivers within the City. Given the current
water shortages facing the State, Texas cities are challenged to exercise their
traditional home-rule powers in ways necessary to protect and sustain their
local and increasing threatened water resources. Amici curiae thus have a
legal interest in upholding a home-rule city’s authority to enact ordinances
designed to protect rivers within municipal boundaries. Beyond regulations
5
focusing on environmental protection, amici also have a legal interest in
preserving the principle of home rule, which has been defined as “the right of
citizens at the grassroots level to manage their own affairs with minimum
interference from the state.” Texas Municipal League, Handbook for Mayors
and Councilmembers, at 8 (2013 ed.).
III. ARGUMENT
A. Appellants have failed to meet their burden of showing, with
unmistakable clarity, that the legislature intended to preempt the
ordinances.
The City of New Braunfels, and all Texas home-rule cities, derive their
powers from the Texas Constitution. See Tex. Const. art. XI, § 5; Proctor v.
Andrews, 972 S.W. 2d 729, 733 (Tex. 1998). Home-rule cities “possess the full
power of self government and look to the Legislature not for grants of power,
but only for limitations on their power.” Dallas Merch.’s & Concessionaire’s
Ass’n v. City of Dallas, 852 S.W. 2d 489, 490-91 (Tex. 1993). Accordingly, Texas
home-rule cities have “broad discretionary powers,” and, absent legislation or
constitutional provisions to the contrary, “a home rule municipality is free to
regulate itself in any manner it chooses.”2 Id. at 490; Lower Colo. River Auth. v.
City of San Marcos, 523 S.W.2d 641, 643 (Tex. 1975).
2 In contrast, counties and general law cities have only those powers prescribed by the
legislature by general law. City of Sherman v. Mun. Gas Co., 127 S.W. 2d 193, 196 (Tex.
1939).
6
The legislature may limit the power of home-rule cities either expressly
or by implication, but the legislature’s intent to limit such powers must appear
with “unmistakable clarity.” City of Houston v. Bates, 406 S.W. 3d 539, 546
(Tex. 2013) (citing Dallas Merch.’s, 852 S.W. 2d at 491). When a home-rule city
ordinance is alleged to conflict with a state statute, a court’s duty is to
reconcile the two “if any fair and reasonable construction of the apparently
conflicting enactments exist[s] and if that construction will leave both
enactments in effect.” Int’l Ass’n of Fire Fighters, Local 1173 v. City of Baytown,
837 S.W. 2d 783, 787 (Tex. App—Houston [1st Dist.] 1992, pet. denied).
This “unmistakable clarity” test and its corollary—that a home-rule city
ordinance be upheld whenever there is “any fair and reasonable construction”
of the ordinance and a state law alleged to be in conflict with the ordinance
“that will leave both enactments in effect”—control the outcome of this case.
In applying this test, courts are hesitant to limit the authority granted to
home-rule cities by the Texas Constitution. Hunt v. City of San Antonio, 462
S.W.2d 536, 539 (Tex. 1971). In reviewing a challenge to a municipality’s
regulatory action, a court’s role is “necessarily circumscribed as appropriate
to the line of demarcation between legislative and judicial functions.” City of
Brookside Vill. v. Comeau, 633 S.W. 2d 790, 792 (Tex. 1982). A city ordinance
is presumed to be valid, and courts have no authority to interfere with matters
7
of municipal government unless a charter provision or ordinance enacted
thereunder is shown to be “unreasonable and arbitrary—a clear abuse of
municipal discretion.” Id. Therefore, a party challenging an ordinance bears
an “extraordinary burden” of establishing that “no conclusive or issuable fact
or condition existed” which would authorize a city’s enactment of the
ordinance. Id. at 792-93. If the evidence before the court reveals an issuable
fact in this respect, such that reasonable minds may differ as to whether a
particular ordinance is reasonable, the ordinance must stand as valid. Id. at
793. In making this assessment, a court must give “due regard to all
circumstances of the city, the object sought to be attained, and the necessity
existing for the ordinance.” City of Waxahachie v. Watkins, 275 S.W. 2d 477,
481 (Tex. 1955).
B. The Ordinances are a valid exercise of the City’s police power
because they protect the public health, safety, and welfare.
Pursuant to its police power, New Braunfels has the authority to enact
the Ordinances. The New Braunfels City Charter expressly declares that the
City “shall have all powers possible for a home rule city to have under the
constitution and laws of the State of Texas as fully and completely as though
they were specifically enumerated in this charter.” City Charter, § 2.01. This
provision incorporates the police power as a power of the City. See Tex. River
8
Barges v. City of San Antonio, 21 S.W. 3d 347, 355 (Tex. App—San Antonio
2000).
An ordinance is a valid exercise of a city’s police power if the regulation
was adopted to accomplish a legitimate goal, that is, it has a “substantial
relationship” to the protection of the public’s general health, safety, or
welfare. Comeau, 633 S.W. 2d at 793. Although the exact parameters of the
police power are difficult to define, courts have found it useful to think of it as
the “power to anticipate and prevent dangers and to protect the inhabitants of
a community, and in so doing, to restrain individual tendencies.” Tex. River
Barges, 21 S.W. 3d at 355 (citing 6A EUGENE MCQUILLIN, THE LAW OF MUNICIPAL
CORPORATIONS § 24.10 (3rd ed. 1984)). Further, “if there is an issuable fact as
to whether the ordinance makes for the good of the community, the fact that it
may be detrimental to some private interest is not material in assessing an
ordinance’s validity.” Id. (citing Edge v. City of Bellaire, 200 S.W. 2d 224, 227
(Tex. Civ. App.—Galveston 1947, writ ref’d)).
Here, the Ordinances are a valid exercise of the City’s police powers and
are not unreasonable or arbitrary. The City enacted the Ordinances to address
pollution and litter problems specific to the Comal River and that short piece
of the Guadalupe River within the City’s jurisdiction. New Braunfels., Tex.,
Code ch. 86, art. I, §86-14. The goal of the Ordinances is to protect the public
9
health and welfare by restricting within the Rivers certain containers that
result in large amounts of trash ending up in the Rivers. Preventing the
pollution and degradation of the Rivers bears a substantial relationship to the
public health, safety, and general welfare. The fact that individuals are
restrained from doing whatever they want on the Rivers, or that Appellees
suffer reduced revenues, does not render the Ordinances an abuse of
municipal discretion.
C. Evidence in the record shows that the Ordinances have the
intended effect of curbing trash in the Rivers.
In enacting the Ordinances, the City government was reacting to
concerns particular to the City—trash and pollution in the Guadalupe and
Comal Rivers within its borders. Evidence in the record concerning the
amount of trash in the Rivers prior to the Ordinances’ enactment
demonstrates the need to regulate activities that result in such pollution. In its
legislative findings, the City Council set forth the problems it intended to
address through the Ordinances.
In his deposition, the Manager of the City’s Solid Waste Division noted,
“the City has experienced a significant reduction in the amount of trash
and litter that was collected and accounted for the years 2012 and 2013 in
comparison to year 2011.” Michael Mundell Aff., attached to Def.’s Resp. to
10
Pls.’s Mot. Entry of Final J., filed Feb. 7, 2014) (attached as Ex. A). After
becoming effective on January 1, 2012, the Disposable Container Ordinance
greatly contributed to the reduction in trash found in the rivers during the
years 2012 and 2013. Most astonishingly, the Comal River alone yielded 97
tons of trash and litter in 2011 before the enactment of the Disposable
Container Ordinance. The amount of trash and litter collected from the Comal
River overwhelmingly decreased—with 24 tons in 2012 and 34 tons in
2013—after the enactment of the Disposable Container Ordinance. Thus, the
City collected 75% and 65% less trash and litter from the Comal River,
respectively, in years with the Ordinance in effect compared to without.
Mundell Aff. The record shows not only that the City was facing a serious
problem of trash in the Rivers, but also that the Ordinances serve the intended
purpose of decreasing pollution and trash in the Comal River and New
Braunfels’s piece of the Guadalupe.
Following the trial court’s ruling granting summary judgment for
Appellees and enjoining the Ordinances, the amount of trash and litter
collected from the Comal River drastically increased by 438% during the 2014
Memorial Day weekend in comparison to the 2013 Memorial Day weekend.
Greg Bowen, Holiday Garbage up 438 Percent, NEW BRAUNFELS HERALD-ZEITUNG,
July 2, 2014 (attached as Ex. B). These data, reported in the City of New
11
Braunfels’s River Services Update, show the amount of trash collected was
significantly higher when the Ordinances were not in effect. Prohibiting
behaviors that lead to more trash ending up in the rivers protects the public
health and promotes the general welfare. Thus, adequate governmental
interests are served by regulating the amount and type of disposable
materials being brought in to the Rivers. At a minimum, these data present an
“issuable fact” over whether the regulations are reasonably related to a
legitimate governmental interest. The Ordinances, therefore, must stand as a
valid exercise of the City’s police power.
D. Home-rule authority must be preserved to ensure local conditions
are addressed effectively and with community input.
The City’s enactment of the Ordinances as a response to the problem of
huge amounts of trash in the Rivers highlights the importance of home rule.
Home rule assumes that governmental problems should be solved at the
lowest level possible, closest to the people, with limited reach and addressing
local conditions. Local governing bodies are most in tune with the particular
issues that face their jurisdictions and can tailor regulations most apt to
resolve those local issues. Courts have repeatedly acknowledged the
judiciary’s limited role in disturbing local enactments unless clearly
12
unreasonable. This principle is embodied in judicial recognition of the
importance of local government’s zoning power:
State legislatures and city councils, who deal with the situation
from a practical standpoint, are better qualified than the courts to
determine the necessity, character, and degree of regulation
which these new and perplexing conditions required; and their
conclusions should not be disturbed by the courts unless clearly
arbitrary and unreasonable.
Gorieb v. Fox, 274 U.S. 603, 608 (1927). Similarly, localized pollution
problems such as the unique circumstances found on the Comal River and that
short stretch of the Guadalupe within the City are best addressed at the local
level.
The Texas Supreme Court has upheld an ordinance regulating the
placement of mobile homes, noting that the regulations were important to
preserving public health and property values in the municipality because of
the unique conditions presented there. Comeau, 633 S.W. 2d at 795. Another
example is provided by the City of Austin’s ordinance prohibiting a type of
pavement sealant. Austin, Tex., Code of Ordinances, Title 6, ch. 6-6, §6-6-2. In
2003, Austin officials singled out parking lot sealants as a likely source of
hydrocarbon pollution in Austin’s lakes and creeks. Tex. Comm’n on Envtl.
Quality, Gem Seal of Tex., Inc. v. City of Austin, Docket No. 2006-0056-MIS, Exec.
Dir.’s Reply Br. at 2 (May 25, 2007). Austin banned the sealants in 2006, and
13
studies recently conducted showed a 58% decline in the pollutant, which is
toxic to aquatic life and a likely carcinogen. Asher Price, Researchers Find
Carcinogen Dropoff in Lady Bird Lake Following Ban, AUSTIN AMERICAN-
STATESMAN, June 16, 2014 (attached as Ex. C). In a challenge to the ban before
the Texas Commission on Environmental Quality, Austin’s authority to adopt
ordinances to protect water quality was upheld. Id.; Gem Seal of Tex., Inc. v.
City of Austin, Exec. Dir.’s Reply Br. at 2.
Like the cities of Brookside Village and Austin, New Braunfels’s
authority to adopt ordinances addressing the unique issues facing the City
should be upheld. As this Court previously acknowledged, New Braunfels
officials became aware of an issue threatening the public health and welfare,
appointed a River Activities Committee to devise possible solutions, and
implemented some of the suggested solutions. 3 STOP v. City of New Braunfels,
306 S.W. 3d 919, 923 (Tex. App.—Austin 2010). This is local government
working at its best and exemplifies why courts will not interfere with a local
regulation absent a “clear abuse of municipal discretion.” See Comeau, 633
S.W. 2d at 792.
3After its passage by the City Council, the Disposable Container Ordinance was challenged
via referendum and upheld by the voters, further demonstrating the importance of
addressing the issues of trash on the river to the local residents. CR:545-49.
14
E. The Ordinances are a valid exercise of the City’s police powers
over navigable waters and are not preempted by the Texas
Constitution nor the Texas Parks and Wildlife Code.
Appellees erroneously argue that the Ordinances unconstitutionally
“invade the public’s right to use and enjoy the rivers,” because only the State
and duly delegated entities have the right to regulate navigable streams.
Appellees’ Br. at 41 (citing Tex. Const. art. XVI, § 59 and Tex. Parks & Wild.
Code § 1.011(c)). This argument fails because the Ordinances in no way
invade constitutionally protected rights of the public and are a valid exercise
of the City’s police power through its inherent powers as a home-rule city and
by virtue of the Texas Local Government Code.
It is not in dispute that navigable streams are held in trust for the public
to use for “navigation, fishing, and other lawful purposes,” and that the public
has a right to use navigable streams for commercial as well as recreational
purposes. See Diversion Lake Club v. Heath, 86 S.W. 2d 441, 444 (Tex. 1935);
Tex. River Barges, 21 S.W. 3d at 352. However, the Ordinances do not run
afoul of the Constitution or Parks and Wildlife Code because they do not
interfere with the public’s ability to access and navigate the Rivers. 4
4Although Diversion Lake Club mentions “enjoyment of the river” one could argue that the
Ordinances impair certain individuals’ “enjoyment” of the river, it is clear from the context
that “enjoy” means access to the river and exercise of the right to use it, rather than bring
or do anything one subjectively might find enjoyable. To demonstrate the danger of using
15
The Ordinances do not prohibit the public from accessing the Rivers, but
rather, make it unlawful “to use, carry, or possess food or beverages in a
disposable container” on the Rivers. New Braunfels, Tex., Code ch. 86, art. I, §
86-14(1). The public’s right to access and navigate rivers does not mean that
anybody has free reign to bring anything into the river they desire, or that a
City cannot exercise its police powers to restrain behavior that could diminish
the public’s safe enjoyment of the river. The right to use the waters is not
without limits. “The fact that navigable streams are held in trust for the
benefit of the public does not mean that the State or a duly-delegated
governmental agency has no authority to restrict navigation on the same.”
Guadalupe-Blanco River Auth. v. Pitonyak, 84 S.W. 3d 326, 340 (Tex. App.—
Corpus Christi 2002); see also Diversion Lake Club, 86 S.W. 2d at 445 (noting
that right to fish in public water does not entail the right to cross or trespass
upon privately owned land in order to reach the water). Indeed, the public’s
right to use the river for fishing and “other lawful purposes” suggests that
governmental entities can and do make unlawful some uses of the river. And
the fact that an activity has historically been lawful does not preclude
governmental action making it unlawful, particularly when circumstances
“enjoy” subjectively, consider this: some might enjoy the river more with disposable
containers, while others enjoy it significantly less without the prohibitions.
16
come to exist that demonstrate problems with that activity—e.g., over 1,400
pounds of trash collected from the Comal River after the 2011 Memorial Day
Weekend.
Moreover, New Braunfels, as a home-rule city, has been delegated the
police power, and it may exert the police power over the navigable waters
within its boundaries. See Tex. River Barges, 21 S.W. 3d at 355; see also
Guadalupe-Blanco River Auth., 84 S.W. 3d at 340 (“[S]tates and their delegates
may exert police power over the navigable waters in their boundaries...”).
Appellees cite to no cases—and amici could find none—employing the Texas
Constitution or the Texas Parks and Wildlife Code to limit the authority of
cities to regulate use of waterways within their borders.
Although Appellees contend that only the State can regulate navigable
waters, the cases cited by Appellees stand for the proposition that private
entities cannot interfere with the public’s access to navigate waterways.
Appellees cite an 1863 case in support of its assertion that the City cannot
regulate waterways, but that case is inapposite. See Appellees’ Br. at 41
(citing Selman v. Wolfe, 27 Tex. 68 (1863)). There, the issue was whether the
Legislature, in authorizing a private entity to erect a bridge, had also
conferred the right to obstruct navigation of a stream. Selman, 27 Tex. at 70.
Thus, the analysis centered on the stream as a state highway, and whether a
17
private entity could obstruct its use as a highway. Id.; see Diversion Lake Club,
86 S.W. 2d at 446 (holding public had right to fish in lake created by a dam,
rather than exclusively belonging to owner of land that was flooded by dam);
Carrithers v. Terramar Beach Cmty. Imp. Ass’n, Inc., 645 S.W.2d 772, 774 (Tex.
1983) (holding that individual landowner is without power to convey an
exclusive right to use navigable waters). 5 The case Heard v. Town of Refugio
comes closer—but still falls short of supporting Appellees’ point. See 103 S.W.
2d 728 (Tex. 1937). There, the issue was whether a town or individuals held
title to a river bed located in adjoining tracts of land. Id. at 728-29. The court
noted that among properties owned by cities and towns for public benefit,
river beds were not one. Id. at 734. But nothing in this case suggests that the
City needs to hold title to the river bed to regulate activities on the Rivers for
public purposes.
More recently, a Texas court expressly upheld a city’s authority to
regulate activities on the river within its jurisdiction. In Texas River Barges v.
City of San Antonio, the court upheld an ordinance regulating navigation on
the San Antonio River. 21 S.W. 3d at 350. Acknowledging that this river is a
5 The quote attributed to Welder v. State on page 42 of Appellees’ Brief actually comes from
the Carrithers case, which does not cite to Welder, 196 S.W. 868 (Tex. Civ. App.—Austin
1917, writ ref’d). Although the quoted excerpt discusses the water belonging to the Texas
and United States governments, this sentence is immediately followed by “An individual
landowner is without power to convey such a right,” demonstrating that the juxtaposition
was between sovereigns and private entities, not cities.
18
navigable stream which may be used and enjoyed by the public, the court
nevertheless held that the City has authority to regulate navigation on the
River to “prevent endangering the public and jeopardizing the River’s
distinctive and sedate character.” Id. Thus, the court upheld San Antonio’s
ordinance requiring vessels to obtain the city’s permission to operate on the
river. Id. at 351. Although that ordinance expressly restricted navigation on
and access to the waterway, the court upheld it as a proper exercise of the
city’s police power. The indisputably less restrictive Ordinances at issue here
should likewise be upheld as a valid exercise of the City’s police power.
F. Texas Local Government Code § 551.002 provides further support
that the Ordinances are a valid exercise of the City’s police power.
To the extent that home-rule cities are limited in their power to regulate
navigable streams, state statute expressly grants the City authority to enact
the Ordinances here. Section 551.002 of the Local Government Code provides
that “a home-rule municipality may prohibit the pollution or degradation of
and may police a stream… that may constitute or recharge the source of water
supply of any municipality.” Evidence in the record shows that the Guadalupe
and Comal Rivers are part of the Middle Guadalupe River Watershed, which
constitutes and recharges the water supply of several municipalities. CR:936;
938. Thus, the City has authority to enact ordinances to decrease pollution
19
and degradation of this resource. Appellees’ strained interpretation of §
551.002 is absurd. See Appellees’ Br. at 40. Appellees argue that, because
Texas Health and Safe Code § 361.0961 prohibits municipalities from
regulating the use of disposable containers, in enacting § 551.002, the
Legislature must have anticipated forms of pollution and policing a stream
other than litter. Id. As support, Appellees point to the Texas Litter Abatement
Act, which criminalizes littering in Texas rivers, and contend that if § 551.002
were to address litter it would be redundant with this Act. Id. But that is
simply not true. Section 551.002 does not make littering in rivers a crime; it
merely authorizes cities to take action to protect streams; thus the statutes do
not serve the same purpose and are not redundant. 6
Moreover, if the legislature intended to exclude litter from the kind of
pollution a city could police under § 551.002, it could have made that
exception clear by defining “pollution” in the statute at issue. It did not. The
legislation does not address the fact pattern present here—there is nothing to
indicate that the legislature actually thought about the issue of too many
beverage containers in rivers running through municipalities. Thus, the
6Further, under Appellees’ interpretation of § 551.002—that it is intended for cities to
address water pollution other than litter—this provision may be redundant with Water
Code § 26.177, which provides that “a city may establish a water pollution control and
abatement program for the city,” and regulations adopted under this section address the
type of “non-litter pollution” that Appellees argue is the subject of § 551.002.
20
Legislature did not express an “unmistakably clear” intent to preempt the
City’s power to enact ordinances designed to reduce pollution in rivers within
City limits. Rather, there is a reasonable construction giving effect to both the
state statute and the City’s ordinances, and the ordinances are not preempted.
See City of Houston v. Bates, 406 S.W. 3d at 546. This construction also gives
appropriate deference to the broad discretionary powers the Texas
Constitution grants to home-rule cities. See In re Sanchez, 81 S.W. 3d 794, 798
(Tex. 2002).
In sum, the City has both the inherent home-rule authority to police
navigable streams in its boundaries and the water-protection powers granted
by the Local Government Code. Those powers support the public health and
safety Ordinances challenged in this case. Appellees cannot point to any
superior state law that displaces these ordinances with “unmistakable clarity.”
The unmistakably clarity in this case is found in the waters of the Comal River.
IV. CONCLUSION
As a home-rule city, New Braunfels has the inherent authority to enact
reasonable regulations that promote the public welfare and are not contrary
to the constitution or laws of the State. The Ordinances bear a substantial
relationship to the public health, safety, and general welfare, and are thus a
reasonable exercise of the City’s authority. Appellees failed to carry their
21
substantial burden of establishing that the Ordinances are invalid.
Accordingly, amici respectfully request that this Court reverse the decision of
the trial court and reinstate the Ordinances.
Respectfully submitted,
/s/ Bill Bunch_____
Bill Bunch
State Bar No. 03342520
bill@sosalliance.org
/s/ Kelly D. Davis____
Kelly D. Davis
State Bar No. 24069578
kelly@sosalliance.org
Save Our Springs Alliance
905 W. Oltorf St., Ste. A
Austin, Texas 78704
T: (512) 477-2320
F: (512) 477-6410
Attorneys for Amici Curiae
CERTIFICATE OF COMPLIANCE
This brief complies with the maximum length limit set forth in Tex. R.
App. P. 9.4(i)(2) because it contains 4,980 words, excluding the parts of the
brief exempted by Tex. R. App. P. 9.4(i)(1). The word count was computed by
Microsoft Word, which was used to prepare the document.
/s/Kelly D. Davis
Kelly D. Davis
22
CERTIFICATE OF SERVICE
I certify that, on March 3, 2015, a copy of the foregoing Brief of Amici
Curiae in Support of Appellant was served electronically via FileTime on the
following counsel of record:
Jim Ewbank
Cokinos, Bosien & Young
1210 Nueces St
Austin, TX 78701
Jonathan H. Hull
Reagan Burrus, PLLC
401 Main Plaza, Ste. 200
New Braunfels, TX 78130
Attorneys for Appellees
William M. McKamie
Adolfo Ruiz
McKamie Krueger LLP
941 Proton
San Antonio, TX 78258
Bradford E. Bullock
Knight & Partners
223 W. Anderson Lane, Ste. A-105
Austin, TX 78752
Attorneys for Appellant
/s/Kelly D. Davis
Kelly D. Davis
23
Exhibit A
Affidavit of Michael Mundell, Manager of the Solid Waste Division, Public
Works Department, City of New Braunfels
Originally attached to Defendant’s Response to Plaintiffs’ Motion for Entry of
Final Judgment, and for an Order that the Judgment Not Be Superseded by
Appeal, and for Attorney’s Fees (filed Feb. 7, 2014, Comal Cnty. District Court)
AFFIDAVIT OF MICHAEL MUNDELL
STATE OF TEXAS
COUNTY OF COMAL
My name is Michael "Mike" Mundell. I am over 21 years of age, of sound mind and
capable of making this affidavit. I am currently the Manager for the Solid Waste Division of the
Public Works Department for the City of New Braunfels and I am responsible for managing the
solid waste division of the City's Public Works Department. I have been in my current position
since August 20 I 0. l have personal knowledge of the facts stated herein, and they are true and
correct.
As the Manager of the Solid Waste Division, I am responsible for overseeing the City of
New Braunfels's efforts regarding the Comal River cleanup practices. As part of my
responsibility, I am familiar with the amount of trash and litter that is collected and accounted for
above the water in public areas alongside the Comal River and under the water in the Comal
River. Since the enactment of the Disposal Container Ordinance which was effective January l,
2012, the City has experienced a significant reduction in the amount of trash and litter that was
collected and accounted for the years 2012 and 2013 in comparison to year 2011. The total
estimated trash and litter for above and below water in the Comal River for 2011 is
approximately 97 tons. The total estimate for trash and tiller for above and below water in the
Comal River for 2012 was approximately 24 tons which was 75% less than the 2011 amount.
The total estimate for trash and liter for above and below water in the Comal River for 2013 was
approximately 34 tons which was 65% less than the 2011 amount.
Further affiant sayeth not.
1!:)£1~, ~ $/
Michael Mundell, Solid Waste Manager for
The City of New Braunfels, Texas
SWORN TO and SUBSCRIBED BEFORE ME on February 5, 2014.
'
~\\\1111111,
~~;~~.Yrrtt;..,.
- c. WILKE
Ch; . .
NOTARY PUBLIC, In and For the State of Texas
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Notary Publio, State of Texas
My Commission Expires
Augusl 06f 20 15
Exhibit B
Greg Bowen, Holiday Garbage up 438 Percent, NEW BRAUNFELS HERALD-ZEITUNG,
July 2, 2014
Holiday garbage up 438 percent - Herald-Zeitung Online: News http://herald-zeitung.com/news/article_7f6e5010-0265-11e4-b116-001...
Holiday garbage up 438 percent
By Greg Bowen New Braunfels Herald-Zeitung | Posted: Wednesday, July 2, 2014 10:52 pm
A report released Wednesday by the City of New Braunfels indicates that the amount of river litter
left behind by tubers increased greatly this past Memorial Day Weekend when compared to the same
weekends in the “can ban” summers of 2013 and 2012.
River trash was up by 438 percent over 2013 and by 356 percent over 2012, according to figures
from the city’s River Services Update.
The can ban, or disposable container ban, was approved by New Braunfels City Council and by city
voters following the “River Wild” summer of 2011. The anti-litter law prohibited tubers from carrying
beer cans and other throw-away food and beverage containers on portions of the Comal and
Guadalupe Rivers within the city limits.
Following a lawsuit by local tubing and tourism firms, the prohibition was set aside in March by a
judge who declared the can ban unconstitutional and ordered the city to stop enforcing it. The city is
currently appealing the ruling to the Third Court of Appeals in Austin.
The River Services Update — the latest report available on river litter collections — said the city’s
contract scuba divers removed 242 pounds of river litter during this year’s Memorial Day Weekend,
which unofficially kicked off the summer tubing season.
That compares to just 45 pounds collected for the Memorial Day Weekend in 2013, the second
summer of the can ban.
That same weekend in 2012, the first summer of the can ban, 53 pounds of river trash were scuba’d
up.
Non-ban years compared
The report also showed that while this year’s Memorial Day Weekend river trash haul was way
above the litter totals experienced during the can ban years, it was nowhere near the trash haul seen
in the pre-can ban summer of 2011.
On the Memorial Day Weekend in 2011, according to the report, 1,421 pounds of river trash were
collected — 487 percent more than seen during this year’s Memorial Day Weekend.
That disparity may be attributable at least in part to the fact that Memorial Day Weekend 2014 was
somewhat rainy while crowd-control measures had to be implemented during Memorial Day
Weekend 2011, which kicked off the infamous “River Wild” summer during which tens of thousands
of tubers descended on the city and there were drownings, hundreds of river-related arrests for such
things as public intoxication, DUI, littering, marijuana possession, jumping from bridges and noise
violations.
“Perhaps weather and crowd-size comparisons between Memorial Day Weekend 2011 and 2014
were a factor,” speculated Sheri Masterson, the city’s public information officer, who added that the
“massive public education campaign mounted to bring attention to good stewardship of our natural
resources over the past several years” may also have played a part.
1 of 1 12/3/2014 3:14 PM
Exhibit C
Asher Price, Researchers Find Carcinogen Dropoff in Lady Bird Lake Following
Ban, AUSTIN AMERICAN-STATESMAN, June 16, 2014
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Researchers find carcinogen dropoff in Lady Bird Resize text
Lake following ban
Posted: 6:13 p.m. Monday, June 16, 2014
0 0 0 New
By Asher Price - American-Statesman Staff
A landmark 2006 prohibition of a type of pavement sealant ended an
upward trend of a probable carcinogen in Lady Bird Lake, Austin-based
federal scientists report.
The findings, published Monday in the journal Environmental Science
and Technology, offer a measure of vindication for those selfsame
scientists — researchers with the U.S. Geological Survey — and Austin
officials who long battled industry interests that had fought the ban.
Scientists examined
sediment collected for
Lady Bird Lake in three advertisement
different decades and In this Section
found the probable Video claims San Marcos city, police websites
carcinogen, called hacked
polycyclic aromatic
Owner of world's biggest pit bull
RODOLFO GONZALEZ
hydrocarbons, or PAHs, works to overcome breed
had declined by 58 stereotypes
U.S. Geological Survey’s Barbara Mahler and
Peter Van Metre speak during a press conference percent since the ban,
held at Lou Neff Point on Lady ... Read More Unlikely coalition pushes back against effort to
reversing a 40-year
scrap local bans
upward trend.
Chilly reception dooms Texas libel bill
Lady Bird Lake was never dangerous for human recreation and remains
Gun bill meets opposition in Texas Senate hearing
below toxicity levels for aquatic life, the scientists and officials said
1 of 5 3/3/2015 3:08 PM
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Monday. Bastrop sheriff: Arrest in Samantha Dean case likely
not soon
But the upward trend had alarmed scientists and officials because it Bastrop Co. sheriff: Arrest in Samantha Dean
indicated, they said, that pockets of the city whose water drains into shooting likely not soon
the lake had experienced higher PAH levels.
Amplify Austin rescinds action that led to exit of
faith-based groups
“The lake is our barometer,” said Barbara Mahler, a USGS researcher
who co-authored the paper. Former Texas Land Commissioner Bob Armstrong
dies
Mahler and her co-author, Peter Van Metre, have been writing about Kent Finlay, music venue owner and songwriters’
PAHs since 2000 — and the makers of sealants have been fighting any mentor, dies at 77
tie to their products for nearly as long.
Sealants are used over asphalt in the construction of roads and parking
lots to make them impervious to water and oxygen penetration.
Coal-tar sealants, which do not absorb oil, often are used in gas
stations and parking lots. Particles of the sealant can become dislodged
in areas of heavy traffic and washed into waterways.
The coal-tar sealants contain high levels of PAHs compared with the
kind without coal tar.
In 2003, Austin officials pointed to parking lot sealants as a likely
source of the chemicals as the American-Statesman ran stories about
pollution by the hydrocarbons in and around Barton Springs Pool.
Researchers concluded that, on average, coal tar-based sealants
accounted for half of all polycyclic aromatic hydrocarbons in the lake,
while tailpipe emissions accounted for about one-quarter.
In January 2006, the city became the first in the nation to ban the
sealants. The following year, the ban survived a challenge from a maker
of sealants at the state environmental agency.
But in 2008, sealant companies formed the Pavement Coatings
Technology Council to beat back expansion of the ban to other
communities.
In April, the trade association asked the EPA to end an endorsement of
USGS findings, based largely on Mahler and Van Metre’s work, that the
sealants are the largest source of PAHs in urban lakes and toxic to
aquatic life.
Mahler and Van Metre “have feelings of animosity toward industry,”
said Anne LeHuray, executive director of the trade association. “We
think they think they’re doing the righteous thing — they’re trying to
science it up, but the science doesn’t hold water.”
In response, Van Metre said: “We are scientists working for the U.S.
Geological Survey. Our mission is to do unbiased work for decision-
makers and the public. All the other research not funded by industry
confirm that these products are a potent source of contamination.”
2 of 5 3/3/2015 3:08 PM
Researchers find carcinogen dropoff in Lady Bird Lake... | www.mystat... http://www.mystatesman.com/news/news/researchers-find-carinogen-d...
Now roughly 16 million Americans live in communities that have
banned coal-tar sealants, according to Tom Ennis, who runs the blog
Coal Tar Free America. The states of Washington and Minnesota;
Washington D.C.; a handful of cities and several counties around the
country have some sort of ban, according to the blog.
The USGS researchers said activities in waterways are safe because the
hydrocarbons tend to settle into sediment at the bottom of waterways
and are in such small concentrations as to pose little risk to human
health.
“Lady Bird Lake is safe to swim in, but it’s not safe to smear yourself in
sediment,” Mayor Lee Leffingwell said. “It was on a trajectory for it to
be unsafe. We reversed that trend.”
Although hydrocarbons can cause tumors in fish, the fish metabolize
the chemical so it doesn’t make its way up the food chain.
“We’ve gotten push-back from industry,” U.S. Rep. Lloyd Doggett,
D-Austin, said about his efforts to expand the Austin ban nationally. But
the new findings “are the latest indication that the rest of the country
should do something to solve this.”
Major milestones in ban:
2003: Following stories in the American-Statesman about pollution in
and around Barton Springs Pool, city officials point to parking lot
sealants as a likely source of the chemicals, called polycyclic aromatic
hydrocarbons, or PAHs.
2006: Starting Jan. 1, following investigations by Austin’s Watershed
Protection Department and the U.S. Geological Survey, Austin bans
coal-tar sealants.
2007: Texas-based GemSeal Inc., a maker of pavement and tennis court
sealants, tries and fails to get the Texas Commission on Environmental
Quality to overturn the ban, which it said was based on faulty science.
2010: A report by the Austin-based researchers found that coal
tar-based pavement sealants are the largest source of PAHs found in
urban waterways nationwide.
2014: The researchers report that PAHs in Lady Bird Lake had declined
by 58 percent since the ban.
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