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\u2019s spring-fed Comal River. They came in great numbers, and they came to tube.<\/p>\n
\u201cWe had so many people on the Comal that we literally had bank-to-bank tubers,\u201d says Gale Pospisil, who was in the middle of her first year as mayor. The tubers clogged the river\u2019s narrow exits, and police were worried they wouldn\u2019t 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\u2014blue Bud Lights, green Heinekens, and silver Coors Lights\u2014that glinted dully like a lifeless coral reef on the river\u2019s bottom, requiring costly cleanup.<\/p>\n
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\u2019s insistence that only the state can regulate the use of navigable waterways.\u00a0<\/p>\n
Motivated by the hectic summer of 2011, Pospisil came up with an idea she thought would circumvent the city\u2019s limited options. The city would allow tubers on the Comal and Guadalupe rivers to drink, but it would ban \u201cdisposable containers\u201d that held \u201cfood or beverage\u201d\u2014primarily, the aluminum cans and plastic bottles in which the vast majority of the tubing army carried their sodas and, especially, their beer.<\/p>\n
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\u2019s 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.<\/p>\n
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.\u00a0<\/p>\n
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 \u201cmore of a retirement community and not a tourist community.\u201d 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\u2019s 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\u2019s banks. The consensus of the tube purveyors was that the can ban was part of this shift; the city council was \u201ctrying to get us out of business,\u201d Gromacki says.\u00a0<\/p>\n
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\u2014though 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\u2014making it difficult for companies to add shuttles mid-summer to meet demand. And though it didn\u2019t come directly from the city, the Texas Department of Transportation\u2019s recent decision to enforce laws requiring shuttles to carry extremely expensive liability insurance didn\u2019t help the situation.\u00a0<\/p>\n
\u201cThere were absolutely vendettas against us,\u201d says Shane Wolf, the general manager of Rockin\u2019 R River Rides. From 2011, a flush year, to 2012, the first year of the ban, tube companies experienced \u201cabout a fifty percent reduction in revenue,\u201d says Wolf. \u201cIn some cases it was as much as
seventy percent.\u201d\u00a0<\/p>\n
Pospisil denies that the city set out to hurt tube companies. \u201cThat was never our intention,\u201d she says. \u201cOur intention was to clean up the river.\u201d She attributes the drop in tubing business to a variety of factors, like Walmart\u2019s strengthening tube-selling business. She does, however, acknowledge relishing the change in demographics that occurred when the ban was in effect\u2014there were more families on the river and less drinking\u2014and says she had hoped that tube companies would adjust to the new marketplace. But she doesn\u2019t begrudge them for fighting the ban. \u201cThe outfitters are looking out for their businesses, and I understand that,\u201d she says.\u00a0<\/p>\n
It was the sturm und drang conjured by the ban\u2019s other opponents\u2014a loosely affiliated resistance movement whose members Pospisil characterizes, with diplomatic derision, as \u201cmalcontents\u201d and \u201ctroublemakers\u201d\u2014that was harder for her to understand. Mike Reynolds, a radio reporter who covered the ban\u2019s passage for local radio station KGNB, goes some way toward explaining what animated these forces. \u201cBeer is a powerful, powerful motivator,\u201d he says. \u201cIf you get between people and their beer, there\u2019s going to be trouble.\u201d 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\u2014though one notes that Leonidas was the Spartan warrior-king who defended the Greeks against the Persians at Thermopylae.\u00a0<\/p>\n
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 \u201ctampering with a government document\u201d and was sentenced to six months in state jail.<\/p>\n
McGonigal started his own newspaper, the NB Citizen, to war against the city\u2019s \u201cestablishment,\u201d 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. \u201cHe would work for forty-eight hours straight,\u201d 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.)<\/p>\n
Then, in late 2012, McGonigal vanished, Reynolds says. For months, the paper\u2019s staff couldn\u2019t reach him. Reynolds took over the paper, now renamed the TX Citizen, and says he\u2019s been interviewed by both the FBI and IRS about his former boss\u2019s activities.<\/p>\n
While McGonigal\u2019s 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. \u201cHow do you start saying who can and cannot use the river?\u201d asks Ewbank, characterizing efforts to regulate tubing as a form of discrimination. \u201cDo you start charging big fees? That has a direct impact against poor people.\u201d<\/p>\n
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 \u201con all issues.\u201d Burgess also ordered the city to pay the plaintiff\u2019s legal fees\u2014some $250,000. The city is appealing the ruling to the Third Court of Appeals, in Austin. But Burgess\u2019s decision\u2014which doesn\u2019t specify on what grounds he overturned the law\u2014sheds no light on how the rule might be made constitutional. \u201cEvery part of the law was a problem,\u201d says Ewbank.<\/p>\n
It\u2019s a dispiriting result for Pospisil, who recently ended her tenure in city hall but remains frustrated with New Braunfels\u2019s lack of autonomy. \u201cThere are a lot of areas where cities need to have more control,\u201d she says. \u201cIt may be the state\u2019s river, but it\u2019s our city, and we\u2019re the ones that have to deal with all the issues.\u201d She refers to the management of the Comal as an \u201cunfunded mandate\u201d\u2014it\u2019s the municipal government that has to pay to safeguard the state\u2019s 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\u2019 point of view than their predecessors were.\u00a0<\/p>\n
And that\u2019s 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, \u201cwe\u2019re going to float somewhere else.\u201d<\/p>\n
Others weren\u2019t so sure. \u201cIt was probably better without the cans,\u201d said Brian Roehl, who came from San Antonio to float at Landa Park. In past years he\u2019d 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. \u201cIt definitely cleaned up the river,\u201d she said. But she wasn\u2019t unhappy the ban had been overturned\u2014bringing back the cans felt like the righting of the natural order. \u201cNew Braunfels had a completely different atmosphere last summer,\u201d she said. \u201cIt was kind of sad.\u201d<\/p>\n
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