Can Ban lawsuit filed

Opponents of the New Braunfels disposable container ban are already seeking to overturn the ordinance via referendum, and now some of them have also filed a lawsuit against it as well.

Tourist businesses filed a lawsuit against the city Wednesday, asking a state district judge to overturn a controversial ban on disposable containers on the Comal and Guadalupe rivers.

“These businesses love the river as much as anyone else,” said Jim Ewbank, their attorney. “But there are other, better ways to control litter.”

He described the law as “an ax murder” approach to the litter issue and said the city was “criminalizing sandwiches in baggies.”


Shane Wolf, who runs Rockin’ R River Rides, one of the lawsuit’s plaintiffs, said that if the ban scares off 5 percent of the town’s tubers, local businesses could lose $20 million next year.

Meanwhile, an overlooked appellate decision last year has cleared the way for yet another lawsuit. This one, also filed by outfitters, challenges a 2007 ordinance banning large ice chests on the rivers.

That upper court ruling gave the river outfitters legal standing to pursue the lawsuit and sent it back to district court.

Ewbank said it would make sense to consolidate the two lawsuits.

Here’s more on that 2007 lawsuit, and here’s the Third Court of Appeals ruling on that 2007 lawsuit. It’s pretty legalistic, and I mostly skimmed it, but this paragraph captures the main points of interest:

In sum, the district court properly dismissed for lack of standing the Outfitter Plaintiffs’ claims challenging the Beer Bong Ordinance, the Five-Ounce Container Ordinance, the Parks Ordinance, and the portions of the Cooler & Container Ordinance other than the cooler-size limitation. However, we conclude that the Outfitter Plaintiffs did demonstrate their standing to prosecute their claims challenging the cooler-size limitation. Furthermore, it follows from this holding that the Outfitter Plaintiffs likewise have standing to prosecute their claims for a declaration that the Comal and Guadalupe are navigable streams whose waters and riverbeds are owned by the State and held in trust for the people of the State. The City dismisses this claim as a “red herring,” in the view that the question of the rivers’ navigability is a mere abstract question of law unrelated to the parties’ dispute concerning the ordinances. We disagree.

So there you have it. On a side note, the treasurer of the Can the Ban PAC has resigned over “differences of opinions with the PAC’s leadership, revolving mostly around recent discussions of a recall petition effort against sitting City Council members that are in favor of the ban”. New Braunfels has recalled a Council member in the past over river-related ordinances, so the news that there may be an effort to do so here is no surprise.

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