will delay a ruling because suit will have to be refiled
A judge in Austin today ordered that the buisness group's lawsuit against the New Braunfels can ban be moved from Travis to Comal Counties, further delaying a ruling on the issue. 1200 WOAI news reports.
The decision means the suit will have to be refiled in Comal County, a major victory for the city.
“We did act on the advice of our counsel that we had the legal right to do that, and we certainly hope that will be the case,” New Braunfels Mayor Gail Pospasil told 1200 WOAI’s Michael Board.
Last August, a divided New Braunfels City Council voted to ban all disposable containers on the city’s recreational rivers, claiming that litter was destroying the ecology of the rivers and was threatening the city’s very lucrative water recreation industry.
Several business groups immediately sued, claiming that the can ban is illegal and will drive weekend tubers and rafters into unincorporated Comal County and will damage their businesses, many of which rely on the patronage of water recreation enthusiasts.
But the ban is popular in New Braunfels. It survived a referendum in November, and efforts to recall Pospasil and members of council who supported it have fizzled out.
Pospasil says officials are confident that the can ban will be upheld.
“Any time we have an ordinance we look to our city attorney for advice, to make sure what we are doing is legal,” she said.
The fate of the can ban is likely to hinge on a judge’s interpretation of what it does. Regulation of ‘navigable rivers’ in Texas is the exclusive authority of the state. That is why the old Texas Water Commission back in the early 1990s ruled that the Edwards Aquifer is actually an ‘underground river,’ because that took the Aquifer out of the realm of property rights and granted the state the authority to regulate it.
A similar attempt to ban alcohol on the rivers in New Braunfels was thrown out by a judge who ruled that regulating alcohol is the responsibility of the Texas Alcoholic Beverage Commission, and not the city of New Braunfels.
But this ordinance may be different. This one simply aims to cut down on litter, and litter control has long been deemed to be a municipal, not a state, responsibility, and cities have been given wide latitude, for example, to pick up trash in state parks which may be inside city limits, or on state property like the grounds of the Alamo in San Antonio.
The ordinance is already being enforced and it is expected to continue to be enforced over the upcoming Memorial Day holiday, which is traditionally the state of the summer water recreation season.
The judge will first decide if he has the authority to consider the legality of the law, and then will decide where the testimony will be heard.
“All we’re trying to do is keep our rivers clean,” Pospisil said. “We’re just trying to get the suit behind us, so we can move forward with it.”
