UPDATE: Can ban suit goes home to Comal County


UPDATE: Judge Jenkins did indeed drop the GLO from the suit and grant the motion for a change of venue. We’ll let you know what happens on Thursday.

By Kimberly Reeves
TBIJ contributor

AUSTIN – (Wed. March 23) The beverage industry’s push to get the New Braunfels’ can ban heard in Travis County was hanging on by a thread on Wednesday after District Judge Scott Jenkins dismissed the TCEQ from the case.

Still to be decided – and the part of the case that will most immediately affect summer time tubers – is whether to issue a temporary restraining order on the can ban, which was passed last year and makes it all but impossible to drink a beer while floating down the river.

That decision won’t happen until at least Thursday. But today’s proceedings provided some decent insight into some of the twists and turns of the fight over whether to ban disposables on the Comal and Guadalupe rivers.

Jenkins will take two days to consider jurisdiction, venue and a temporary injunction on the New Braunfels City Council’s ordinance to ban cans from the Comal and Guadalupe rivers. The case is being closely watched, as San Marcos also narrowly passed a similar ordinance.

The heads of the impact agencies were dismissed immediately from the lawsuit, leaving only the Texas Commission on Environmental Quality and the General Land Office on the hook when it came to arguing in favor of the ban.

Assistant Attorney General Cynthia Woelk, representing the interests of TCEQ in case, argued that the agency’s involvement in the case was all but tangential and based on the agency’s administration of the Sold Waste Disposal Act.

“There is nothing going on in the TCEQ that amounted to a dispute between the plaintiffs and my client,” Woelk told Jenkins this morning.

Attorneys Jim Ewbank and Jonathan Pauerstein represented the opponents to the ban – among them, local business owners who have argued the ban has had a heavy impact on them.

On one side of the courtroom sat the small business owners who represented the New Braunfels tourism and tubing industry. Across the aisle, in suits and skirts, sat the various lobbyists and lawyers with ties to the alcoholic beverage industry.

Almost all the attendees in the courtroom, minus the three Austin television stations in attendance, were opposed to the ban, which already has gone into effect.

Pauerstein argued state statute required an opponent of the ban to notify by the Attorney General’s office and involve the related agencies. Jenkins scoffed at that argument, saying such an argument would mean TCEQ would be involved in municipal challenges in dozens of cases around the state.

Such a concern was immaterial, Pauerstein argued, if the plaintiffs in the case were carrying out the law. Jenkins disagreed and dismissed TCEQ from the case.

That left the General Land Office. Assistant Attorney General Ken Cross said he had been inclined to argue points similar to TCEQ until the agency had read the language in the New Braunfels’ brief, which brought the question of navigability of the Comal and Guadalupe rivers into the issue.

Jenkins, who grew up in San Antonio, said he found it hard to imagine that navigability of the Comal and Guadalupe rivers was at issue.

In short, GLO wanted to be out of the case unless the City of New Braunfels wanted to argue the merits of the navigability argument. Asked directly by Jenkins whether navigability would be at issue in the city’s arguments, city Attorney William McKamie was vague, saying he wasn’t sure at that point.

Pulling navigability off the table would push GLO out of the case, in all likelihood. In that case, Jenkins indicated he would be inclined to release the case to Comal County. The only reason the case was in Travis County is because of the challenge to the various state agencies and their leaders.

That indecision, however, left the venue question in limbo, Jenkins said. By the end of the day tomorrow, Jenkins will rule whether GLO stays in or out in the case, based upon the arguments presented by New Braunfels.

Jenkins’ biggest decision this go-round will be whether to issue the TRO. Of course we’ll keep you posted, and you can also watch the Twitter feed at www.twitter.com/TBIJournal.

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