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Canning the Ban

Three years ago, New Braunfels cracked down on the drunken revelers who trash the Comal River every summer. Then things got really messy.

By July 2014Comments

Photograph by Kenny Braun

In the summer of 2011, New Braunfels, the watery old town between Austin and San Antonio, was undergoing an invasion. Sweaty refugees, turned away from rivers elsewhere in Texas whose waters had been diminished by the worst one-year drought in history, found solace in the town’s spring-fed Comal River. They came in great numbers, and they came to tube.

“We had so many people on the Comal that we literally had bank-to-bank tubers,” says Gale Pospisil, who was in the middle of her first year as mayor. The tubers clogged the river’s narrow exits, and police were worried they wouldn’t be able to reach people in need. The crowds spilled over into residential neighborhoods. Pospisil talks of nudity, noise, and fights, such as when a drunk 28-year-old Marine assaulted a police officer. But the biggest problem, she says, was the trash: the thick layer of beer cans—blue Bud Lights, green Heinekens, and silver Coors Lights—that glinted dully like a lifeless coral reef on the river’s bottom, requiring costly cleanup.

Even before the 2011 onslaught, New Braunfels had tried to rein in the party element. In 2001 the town imposed a river management fee on local tube rental companies in order to recoup the costs of cleaning up the Comal. (It was later overturned in court, at substantial cost to the town.) The city council considered banning alcohol on the river, but the Texas Alcoholic Beverage Code, which gives the state exclusive power to say when and where people can and cannot imbibe, prevented that. And then there was the Texas constitution’s insistence that only the state can regulate the use of navigable waterways. 

Motivated by the hectic summer of 2011, Pospisil came up with an idea she thought would circumvent the city’s limited options. The city would allow tubers on the Comal and Guadalupe rivers to drink, but it would ban “disposable containers” that held “food or beverage”—primarily, the aluminum cans and plastic bottles in which the vast majority of the tubing army carried their sodas and, especially, their beer.

The first time the council considered the ordinance, on August 8, 2011, it attracted relatively little interest. But when the council came back to vote on the measure two weeks later, things had changed. With a large crowd expected, the meeting was moved to the city’s convention center, where more than four hundred people attended. The ordinance passed five to one, but only after a raucous hearing in which one opponent was dragged away by the police, an irate business owner threw a wad of cash at council members, and an Austin trial lawyer named Jim Ewbank announced his intention to smash the ordinance in court.

The ban predictably ignited the passions of two groups: people who wanted to drink beer on the river and, more formidably, those who profited from the people who wanted to drink beer on the river. An ad-hoc coalition of the latter quickly formed. Among their number were the convenience stores and hotels that depend on the tourist trade, the Anheuser-Busch-affiliated beer wholesaler Tri-City Distributors, and tube outfitters, who feared their business would fall off a cliff. 

The outfitters led the crusade. Scott Gromacki, the manager of Gruene River Company, says there was more to the ban than Pospisil and the council were letting on. Local politicians, he says, want to make the city “more of a retirement community and not a tourist community.” The region, as everyone in town knows, has been experiencing explosive growth; neighboring San Marcos is the fastest-growing city in the country, and between 2000 and 2012 New Braunfels’s population grew 66 percent, to almost 61,000 people. Its character has been changing as well. In recent years, the city began popping up on national lists of the best places to retire. Brand-new loft-style apartments rose near the river’s banks. The consensus of the tube purveyors was that the can ban was part of this shift; the city council was “trying to get us out of business,” Gromacki says. 

Other regulatory efforts, aimed at the shuttles that the tube companies use to transport their customers upstream, exacerbated the sense that the city was trying to curtail their business. In 2005 the council introduced a quota system that limited the number of shuttle seats each company is allowed to provide—though it was dropped earlier this year, after some companies figured out how to game the system. The city has also required that shuttles must receive permits for use by May 1 of each year—making it difficult for companies to add shuttles mid-summer to meet demand. And though it didn’t come directly from the city, the Texas Department of Transportation’s recent decision to enforce laws requiring shuttles to carry extremely expensive liability insurance didn’t help the situation. 

“There were absolutely vendettas against us,” says Shane Wolf, the general manager of Rockin’ R River Rides. From 2011, a flush year, to 2012, the first year of the ban, tube companies experienced “about a fifty percent reduction in revenue,” says Wolf. “In some cases it was as much as
seventy percent.” 

Pospisil denies that the city set out to hurt tube companies. “That was never our intention,” she says. “Our intention was to clean up the river.” She attributes the drop in tubing business to a variety of factors, like Walmart’s strengthening tube-selling business. She does, however, acknowledge relishing the change in demographics that occurred when the ban was in effect—there were more families on the river and less drinking—and says she had hoped that tube companies would adjust to the new marketplace. But she doesn’t begrudge them for fighting the ban. “The outfitters are looking out for their businesses, and I understand that,” she says. 

It was the sturm und drang conjured by the ban’s other opponents—a loosely affiliated resistance movement whose members Pospisil characterizes, with diplomatic derision, as “malcontents” and “troublemakers”—that was harder for her to understand. Mike Reynolds, a radio reporter who covered the ban’s passage for local radio station KGNB, goes some way toward explaining what animated these forces. “Beer is a powerful, powerful motivator,” he says. “If you get between people and their beer, there’s going to be trouble.” After the can ban was passed, Reynolds and many other locals fell into the orbit of a pro-can jihadist named Leonidas Patrick McGonigal. An area businessman, McGonigal is a somewhat-elusive figure with a criminal history; he was born Mark Jason Moore and four years ago legally changed his name, purportedly in honor of his Irish heritage—though one notes that Leonidas was the Spartan warrior-king who defended the Greeks against the Persians at Thermopylae. 

McGonigal had deep pockets and an abiding hatred of the New Braunfels city government, which he saw as corrupt, meddling, and small-minded. His first major move was to help push for a referendum to overturn the can ban, which made it onto the November 2011 ballot. To the shock of his supporters, it failed miserably, by a vote of 58 to 42 percent. So McGonigal tried another tack, leading efforts to recall Pospisil and city council member Bryan Miranda, a supporter of the can ban. Those efforts failed too, and after irregularities were discovered in the petition to recall Miranda, one activist, David Martinez, pleaded guilty to “tampering with a government document” and was sentenced to six months in state jail.

McGonigal started his own newspaper, the NB Citizen, to war against the city’s “establishment,” believing the 160-year-old New Braunfels Herald-Zeitung was an agent of the status quo. He poured money into the enterprise for nearly a year, while many of his employees slowly came to wonder about his mental state. “He would work for forty-eight hours straight,” says Reynolds, who left KGNB to work at the Citizen. (Which sounds like an unusual workplace; at one point, Reynolds found a gun hidden in the office copy machine.)

Then, in late 2012, McGonigal vanished, Reynolds says. For months, the paper’s staff couldn’t reach him. Reynolds took over the paper, now renamed the TX Citizen, and says he’s been interviewed by both the FBI and IRS about his former boss’s activities.

While McGonigal’s crew was coming apart, the tube companies and their allies were diligently advancing a legal challenge, led by Ewbank, the Austin attorney, who approached the ban with the seriousness of a solicitor before the Supreme Court. “How do you start saying who can and cannot use the river?” asks Ewbank, characterizing efforts to regulate tubing as a form of discrimination. “Do you start charging big fees? That has a direct impact against poor people.”

In January, a little more than two years after the disposable-container ban first went into effect, it was struck down by state district court judge Don Burgess, who granted a summary judgment “on all issues.” Burgess also ordered the city to pay the plaintiff’s legal fees—some $250,000. The city is appealing the ruling to the Third Court of Appeals, in Austin. But Burgess’s decision—which doesn’t specify on what grounds he overturned the law—sheds no light on how the rule might be made constitutional. “Every part of the law was a problem,” says Ewbank.

It’s a dispiriting result for Pospisil, who recently ended her tenure in city hall but remains frustrated with New Braunfels’s lack of autonomy. “There are a lot of areas where cities need to have more control,” she says. “It may be the state’s river, but it’s our city, and we’re the ones that have to deal with all the issues.” She refers to the management of the Comal as an “unfunded mandate”—it’s the municipal government that has to pay to safeguard the state’s river.
New Braunfels could seek action from the Legislature, but that seems unlikely; the new mayor and a few new members of the city council seem to be more sympathetic to the tube companies’ point of view than their predecessors were. 

And that’s just fine with many of the tubers who braved thunderstorms and cold water to return to the Comal on Memorial Day, the traditional start of the tubing season. Some, like Dylan Miller, who came from Colorado on an annual pilgrimage, were thrilled to return after two years of taking their beer and business elsewhere. If the ban returns, he said, “we’re going to float somewhere else.”

Others weren’t so sure. “It was probably better without the cans,” said Brian Roehl, who came from San Antonio to float at Landa Park. In past years he’d watched teams of scuba divers clean up the riverbed, and he thought it was a crazy use of resources. Kayla Justiss, who grew up in the city, seemed to agree. “It definitely cleaned up the river,” she said. But she wasn’t unhappy the ban had been overturned—bringing back the cans felt like the righting of the natural order. “New Braunfels had a completely different atmosphere last summer,” she said. “It was kind of sad.”

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