### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-07-00386- CV

Stop Th e Ordinances P lease; WWG AF , Inc. d/b /a/ Rockin “R” River Rides; Texas Tub es; Cor ner Tubes; Gr uene Hom e Run Batting Cages & Tubi ng;

and S tone Randall Wi lliams, Appellants

v. City of New B raunf

els, Texas, Appellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. C2007 -03 87B , H ONO RAB LE RONALD G. CARR, J UDGE P RESIDING

O P I N I O N
Appellants Stop The Ordinanc es Please (STOP); WW GAF , I nc., d/b/a Rockin “R” River Rides; Texas Tubes; Corner Tubes; Grue ne Home Run Ba tting Cag es & Tubing ; and
Stone Randall Wil liams appea l a district court judgme nt dismiss ing, for lack of standing , decla ratory and injunctive relief claims they asser ted ag ainst the City of Ne w B raunf els (the City) cha lleng ing

cer tain municipal ordinanc es. Concluding that the dist ri ct co u rt proper ly dismiss ed some of appellants’ claims but err ed in dismiss ing others, we wi l l aff irm the judgme nt in part and reve rse and re mand in part.

BACK GR OUND

Wit hin the Ci t y ’s m unicipal boundarie s flow two public water way s—the Guada lupe River, on its path from the Texas Hill Country to the Gulf of Mexi co, and a tributary tothe Guada lupe, the spring -fe d Comal River, the entire expanse of which is located within city limit s.

Especia lly during the hotter months, these rivers’ ref reshing cool water s and scenic beauty have long
attrac ted thousands of “tuber s” from throug hout T exas to visit the New Br aunfe ls area and delig ht in floating lazily

downstream on inner tubes or othe r flotation device s. I t has not been unkno wn fo r many tubers to enjoy alcoholic bever ag es while floati n g along

. For sever al y ear s, some New Br aunfe ls residents (including riverside residential
proper ty owner s) and some local officia ls have complained that tubers, often fu el ed b y excessive
amounts of alcohol, have eng ag ed in behavior s detrimental to the rivers and surrounding land, not to mention the ability o f o thers to quietly enjoy these are as. Complaints have included public lewdness, nudity , urination and d e f e c a ti o n ; li tte ring ; stag g ering or debilitating drunkenne ss; and lifethrea tening stunt-jum p i n g i n t o t he water from bridg es and the like. These residents and officia ls have advoca

ted—in addition to relianc e on alre ady -straine d local law enf o rc em ent

resour ces—va

rious state or local reg ulatory actions to combat fac tors they perc eive as contributing
to these developments. Gene rally opposed to these sorts of initiatives (and disputing the deg ree to 1
which t h e al l eg ed problems to which the initiatives are direc ted exis t) have been a number of local businesses that ear

n reve nue from tubers (and/or their alcoholic- bever ag e consumption). Among these are outfitters who ear n reve nue from renting inner tubes and providing shuttle service s betwee n entry

and exit point s along the river s.

T h es e eff orts have included an unsucce ssful eff ort to persua de the alcoholic bever ag e 1 commission to desig nate the two rivers a “ce ntral business district” in which open alcohol container s could be pr ohibited. See Tex. Alco. Be v. Code Ann. § 109.35 (West 2007). 2I n 2006 and 2007, the New Br aunfe ls City Coun ci l enac ted the following

four or dinance s:

• The “Beer Bong” Ordinan ce. Finding that “volume drinkin g d e v ic e s p r o p o s e c e r tain health, safe ty , and welfare hazards,” the Council enac ted a c ity wide prohibition ag ainst the us e or possession of “volume drinking device s” in public place s within the City

. The ordinanc e define s “volume drinking device s” as “an object used, intended for use or desig ned for use in artificia lly incre asing the speed with which, and/or amount of, alcohol is inge sted into the human body by car

ry ing the liquid from a highe r location into the mouth by forc e of g ravity or mecha nica l m ea n s, including but not limit ed to funnels, tubes and hoses.” This prohibition ex plicitly

includes “a

beer bong .”

• The Five -Ounce Cont ainer Ordinan ce. Finding that “[t] he use of container s with a volume of 5 fluid ounces or less on water way s wi t h i n t he City has cre ated a public nuisance by incre asing litter and interfe ring with the public’s enjoy ment of parks, water

way s, and public space s,” the Council enac ted a prohibition ag ainst the use, car ry ing, possession, or disposal o f an “open container ” with a volume capa city of five fluid ounces or less in the public water s of the portions of the Guada lupe River, L ake Dunlap (a rese rvoir on the Guada lupe), or Comal River that lie within the city limit s. “Ope n container ” is define d as “a bottle, can, or other rec eptac le that is open, that has been opened, that has a broken seal, or the contents of which a

re f ully or par tially remove d.”

• The Parks Ordinan ce. Ba sed on rec ommendations of a Counc il

- a p p ointed “River Activities Commi ttee” and the City ’s Parks and Recre ation Advisory Boa rd, and “to protec t the health, safe ty and welfa

re of the cit izens and visitors to New Br aunfe ls,” Council enac ted a prohibition ag ainst the consumption of alcoholic bever ag es or possession of an open container of same within the boundarie s of sevente en public parks and city -owne d proper ties within the city limit s. Some, but not all, of these proper ties are located along the Comal or Guada lupe an d p rovide acc ess for tubing. I n one park, Prince Solms Park, the City rents tubes.

• T h e C ooler & Cont

ainer Ordinan ce. Following another rec ommendation of the Ri v er Activities Commi ttee, which advocated the limit ation “in order to decr ease litter, minimi ze p u b li c n u is a nces and interfe renc e with the public’s enjoy ment of parks, water

way s a n d p u b li c space s; and prese rve the pristine n at u re of the water way s,” Council enac ted a prohibition ag ainst the use, car

ry ing, possession, or d i s p osal of a “coole r” (“a rec eptac le or appar atus ca p ab l e of cooling or keeping cold food and drinks and which car ry more t h an o n e container ”) with a capa city exceeding six teen quarts on or in the public water s of the portions of the Guada lupe and Comal Rivers that lie within the city li m i t s . The ordinanc e further limit s eac h person to one cooler and require s that any cooler be secur ed by a zipper, Velcr o
3snap, mecha nical latch, or bung ee cord to preve nt the contents of the cooler from falling out of the c ooler. I t a lso pr ohibits the use, car ry ing, or possession of

container s constructe d of g lass or Sty

rofoa m.

I n respo nse to these ordinanc es, STOP, which alleg ed it was “an unincorporated

as s o ci at ion of business owner s and other parties interested in the use and enjoy ment of t h e Comal and Guada lupe Rivers which flow with i n t h e co rporate city limit s of the City of
New Br aunfe ls,” sued the City under the Uniform Dec lara tory J udg ments Act seeking decla ratory 2
and injunctive relief to restra in enforce m en t of the ordinanc es. Charac terizing the ordinanc es as

mere ly an attempt t o reg ulate alcohol consumption on the rivers, STOP soug ht decla rations that the ordinanc es and the City ’s actions exceede d the City ’s authority by attempting to reg ulate matters
pree mpted by State aut hority under the alcoholic bever ag e code. See Tex. Alco. Be v. Code Ann. § 1.06 (West 2007) (“U nless otherwise specific ally pro v i d ed by the terms of this code, the manufa cture , sale, distribution, transporta tion, and possession of alcoholi c b ev er ag es shall be
g overne d exclusively by this code.” ). I n the alterna tive, STOP also soug ht a declara t i on that the Five- Ounce Container Ordinanc e (which it terms the “Jell-O-Shot Ordinanc e” to emph as i ze the ordinanc e’s perce ived connection to alcohol reg ulation) and C ooler & C ont ai n er Ordinanc e, each of whic h c o n ta in lang uag e about litter control, violate section 361.0961 of the health and safe ty code.
See Tex. Hea lth & Safety Code Ann

. § 361.0961 (West 2001) (“A local g overnme nt or other political subdivision may not adopt an ordinanc e, rule, or reg ulation to:

. . . prohibit or restric t, for

See Uniform Dec lara

tory J udg ments Act (UDJA), Tex. Civ. Prac. & Rem. Code Ann. 2 §§ 37.01-.011 (West 2008). 4solid waste manag ement purposes, the sale or use of a container or packa g e in a manner not

authorized by

state law . . . .” ). The City responde d wi t h a p l ea to the jurisdiction challeng ing whether STOP had sufficie ntly

pled its standing to prose cute its claims. Following a hearing at which only arg ument

was prese nted, t h e d i s t ri ct court g rante d the plea, then later vaca ted its order to aff

ord STOP the opportunity to r eplea d. See Texas Dep’ t of Parks & W ildlif e v. Miranda , 133 S.W .3d 217, 226-27 (Tex. 2004) (plaintiff should be aff orded opportunity to amend if pleading s do not contain sufficie nt fac ts to aff

irmatively demonstrate trial court’s jurisdicti o n b u t d o not aff irmatively demonstrate incura ble defe cts in jurisdiction). The court set a deadline for STOP to reple ad and schedule d a hear ing there afte r. I n advanc e of the hear ing, STOP amende d its petition twice. I n its live pleading (its third amende d petition), STOP joined five indi vidual plaintiffs whom it allege s ar e among its members (collec tively , Appellants). Four individual plaintiffs are outfitters eng ag ed in the business of renting tubes and ice chests for use on the C o m al an d Gu adalupe Rivers—Rockin “R” River Rides, Texas Tube s, Corner Tube s, and Grue ne Home Run B atting Ca g es & Tubing (collec tively , th e “O u t fi t t er Plaintiffs”). The fifth individual plaintiff, Stone Randall Wil liams, alleg es that he

rec eived a citation for a violation of the Cooler & Container Ordinanc e while tubing on the Comal within New B raunf

els city limit s. 3

Another individual plaintiff joining the suit, L indsay Michelle Crim, alleg ed she had been 3 cited for vi o l at i n g t h e P arks Ordinance while t ubing on the C omal. Crim, howeve r, di d not file a notice of appea l. Stil l more individual plaintiffs joined in Appellants’ second amende d petition but wer e nonsuited by

omission i n Appellants’ third a mended pe tition. 5Appell an t s als o added new alleg ations and claims. They alleg ed that the

four challeng ed ordinanc es, by exceeding the City ’s statutory power s, violated article XI , section 5 of the Texas Constit ution. See Tex. Const. art. XI , § 5 (“[N]o char ter or any ordinanc e passed under said char ter shall contain any provision inconsistent with the Constit utio n o f the State, or of the
g ener al laws enac ted by the L eg islature of this State.”). Fur ther, in addition to the claims previously

asser ted by STOP, Appellants soug ht decla rations that the Comal and Guada lupe as they flow throug h the City are “navig able streams” wh o s e wa t er s and riverbe ds are owned by the State and held in trust for the people of the State, and that the City “may not exert its police power s ag ainst the
State of Texas or on the state-owne d proper ty consisting of the water an d riverbe ds of the Comal and Guada lupe Rivers as they flow throug h the City .” Finally , Appellants soug ht a decla ration that

a 2001 ordinanc e under which the City had imposed a “rive r manag ement fee ” o n t he Outfitter Plaintiffs was “illeg al and unc onstitut ional.”

The City did not dispute the Outfitter Plain t i ffs’ standing to challeng e the rivermanag ement fe e, but asser ted that Appellants had not demonst rate d standing to assert a ny of their other claims. Following the hear ing, at which on l y arg ument was prese nted, the district court
g rante d the City ’s plea e x cept with reg ard to the unc halleng ed rive r-mana g ement-f ee c laims. The
court sever ed the river- manag ement-f ee claims, making its dismiss al of the other claims final. This
appea l ensued.

ANALYSIS

I n a single issue, Appellants asser t that the district court err ed in g ranting the City ’s plea to the j urisdiction beca use t hey had sufficiently pled t heir standing to prosec ute t he claims at

6issue, both individually and throug h STOP. I n a subsidiary arg ument, Appellants urg e that two of the Outfitter Plaintiffs that are riparia n landowner s—Rockin “R,” which owns proper ty on both the
Com al an d Guada lupe, and Texas Tubes, which owns proper ty on the Comal—have standing to obtain a dec lara tion as to whether the se wa terwa y s are “navig able stre ams” unde r Texas law.

Stand ard and s cope of review

A p l ea to the jurisdiction challeng es a trial court’s authority to decide a case . S ee Miranda , 133 S.W .3d at 225-26. Analy sis of whether this authority exis ts beg ins with the plaintiff’s live pleading s. Id. at 22 6

. T h e p laintiff has the initial burden of alleg ing fac ts that aff irmatively demonstrate the trial court’s jurisdiction to hear the cause . Id. (citing Texas Ass’n of B us. v. Texas
Air Control Bd. , 852 S.W

. 2 d 440, 446 (Tex. 1993)). Whether the plaintiff met this burden is a question of law that we revie w de novo. Id. W e co nstrue the pleading s liberally and look to the pleade r’s intent. Id.

Ordinar ily , if the pleading s do not co n ta in s u f f ic ie n t f a c ts to a f f ir ma ti v e ly d e monstrate the district court’s jurisdiction but do not aff irmatively demonstrate incura ble defe cts in jurisdiction, the issue is one of plea ding suf ficienc y , and we aff

ord t he plaintiffs the oppor tunity to amend. Id.
at 226-27; cf. id. at 227 (if pleading s aff irmatively neg ate exis tence of jurisdiction, then plea to the jurisdiction may be g rante d without allowing plaintiffs an opportunity to amend)

. Howeve r, wher e,

as h ere, the plaintiffs have alre ady been aff orded an opportunity to amend in response to th e trial court’s g ranting of a plea to the jurisdiction, the plaintiffs a re not e ntitled to replead y et ag ain if we deter

m i n e their pleading s still fail to invoke the trial court’s jurisdiction. Harris County v. Syk es , 136 S.W .3d 635, 639-40 (Te x . 2004).

7When resolving issues pres ented by the plea to the jurisdiction, we may

consider evidenc e that the parties have submitt ed. Bland Indep. Sch. Dist. v. Blue , 34 S.W .3d 547,
554 (Tex. 2000). Her e, neither party submitt ed evidenc e in connec tion with the City ’s plea, althoug h Appellants did attac h to their petition copies of the or dinance s they challeng ed.

Ge neral standin g principl es

Standing, at least in a constitutional sense, is a component of the trial court’s subjectmat t er j u ri s diction. See Texas Ass’n of Bus. , 852 S.W .2d at 443-45. The g ener al test for 4
constitutional standing in Texas courts is whether there is a “re al” (i.e., justiciable) controve rsy betwee n the parties that will actua lly be deter mined by the judicial decla ration soug ht. See id. at 446. Constit utional standing is thus conce rned not only with whether a justiciable controve rsy exis ts, but whether the particula

r plaintiff has a suffi ci en t persona l stake in the controve rsy to assure the
prese nce of an actua l controve rsy that the judicial decla ration soug ht would resolve. See Patterson

v. Planned Parenthood , 971 S.W .2d 439, 442 (Tex. 1998); Nootsie, Ltd. v. W i l l i a ms on County Appraisal Dist. , 925 S.W .2d 659, 662 (Tex. 1996). The require ment there by serve s to safe g uard the
separ ation of power s by ensuring that the judiciary does not encr oach upon the executive branc h by rende ring advisory opinions, decisions on abstrac t questions of law that do not bind the parties. See Texas Ass’n of Bus ., 852 S.W .2d at 444.

Cf. Coastal Oil & Gas Corp. v. Garza Energy Tr u s t , 2 6 8 S

. W

. 3 d 1, 9 n.16 (Tex. 2008) 4 (obser ving that fede ral standing doctrine has both jurisdictional and prudential components and that “[t] his Court has not indicated whether standing is alway s a matter of subject-matter jurisdiction”). 8For a party to have standing to challenge a g overnme ntal action, as a g ener al rule,

it “must demonstrate a particula rized interest in a conflict distinct from that sustained by the public
at larg e.” South Tex. W

ater Auth. v. Lomas , 223 S.W .3d 304, 307 (Tex. 2007); see Brown v. Todd , 53 S.W .3d 297, 302 (Tex. 2001) (“O ur decisions have alway s require d a plaintiff to all eg e some injury distinct from that sustained by t h e public at larg e.”) ; Tri County Citi zens Rights Org.

v. Johnson , 498 S.W .2 d 2 2 7 , 2 2 8-29 (Tex. Civ. App.—Austin 1973, writ ref ’d n.r.e.) (“I t is an established rule . . . that ‘. . . suffic iency of a pla intiff’s intere st (to maintain a lawsuit) come s into question when he intervene s i n p u b l ic aff airs. When the plaintiff, as a private citizen, asser ts a public, as distinguished from a private, rig ht, and his complaint fa i l s t o show that the matters in dispute aff

ect him differ ently from other citizens, he does not establish a justiciable interest.’” ) (quoting 1 Roy W. McDona ld, Texas Civil Practi ce § 3.03, at 229 (re v. vol. 1965)). The United
States Supreme Court, apply ing standing p ri n cipl es that are analog ous to Texas standing jurisprudenc e at least with respe ct to challeng es to g overnme ntal action, has explained that the “irre ducible constitutional minim um” of standing consists of three elements:
(1) “the plaintiff must have suffe red an ‘injury in fac t’—an invasion of a ‘leg ally protec ted’ [or cog nizable] interest wh i ch i s (a) concr ete and particula rized and (b) ‘ac tual or imminent, not conjectura l or hy pothetical’” ; (2) “ther e must be a causa l con n ec t i o n b et we en t h e injury and the conduc t complained of”—the injury must be “fa irly trac eable ” to the challeng ed action of the defe ndant an d n o t t he independe nt action of a third party not befor e the c ourt; and (3) it must be likely , and not mere ly specula tive, that the injury will be redr essed by a fa vorable decision.

9Lujan v. Defende rs of W ildlif e , 504 U.S. 555, 560-61 (1992); see Brown , 53 S.W .3d at 305 (“[W] e
may look to the similar fede ral standing require ments for g uidance .”); Save O ur Springs Alli ance, Inc. v. City of Dripping Sp rings , No. 03-04-00683- CV, ___ S.W .3d ___, 2010 Tex. App. L EXI S
1 0 2 5, at *9-10 (Tex. App.—Austin Fe b. 11, 2010, no pet. h.). “I njury -in-fa ct,” the corne rst o n e 5
of these require ments, is conce ptually distinct from the question of whether the plaintiff has incurre d

a legal injury

—i.e., whether the p l ai n t i ff has a viable cause of action on the merits. See Hunt

v. Bass , 664 S.W .2d 323, 324 (Tex. 1984). Simi larly , the require d infringem en t o f a “leg ally 6 protec ted interest” does not nece ssarily have to rise to the level of depriving the plaintiff of a “veste d righ t ” so as to violate due proce ss. See Coastal Habitat Alliance v. Public Util. Comm’n , 294 S.W .3d 276, 287 (Tex. App.—Austin 2009, no pet.) (“Whether a plaintiff has standing in fede ral

co u rt s to asser

t a cause of action is not indicative of the deprivation of a vested property rig h t

. ”)

. Nonethele ss, it re mains that a plaintiff must show that it ha s or imminently will suff er an invasion of some leg ally cog nizable interest that is sufficie ntly unique to the plaintiff, as distinguished from the g ener al public, to ensure that the plaintiff has a sufficie nt persona l stake in the controve rsy so that the lawsuit would not y ield a mere advisory opinion or draw the judiciary into g ener alized po licy disputes that are the province of t he o t h er b ranches. Save Our Springs Alliance, Inc , ___ S.W .3d

___, 2010 Tex. App. L EXI S 1025, at *8-24 (apply ing this require ment t o h o l d that association members, who claimed e nvironmental, scientific , and re cre ational intere sts in Barton Spring s, but

See also Wil liam V. Dorsane o, The Enigma of Standing Doctrine in Texas Courts , 28 Tex. 5 Rev. L itig. 35, 42-58 (2008) (obser ving that Texas courts have sometimes equat ed “s tanding ” to b ring common-law or statutory claim with exis tence of legal injury while apply ing s t an d i n g principles in public-rig hts cases tha t resemble injury -in-fa ct test applied by fede ral c ourts). See also Dorsane o, supra note 5, at 44-45. 6 10no proper

ty interests affec ted b y alleg ed poll ution, had not established inj ury distinct from that of
g ener al public); see also Lujan , 504 U.S. a t 560, 576-78 (discussing role of standing in pr eventing judicial incursions into leg islative and executive spher es).

Outf itter P laintif

fs The four Outfitter Plaintiffs asser t that their live petition sufficie ntly alleg es they are incurring particula

rized injury from the ordinanc es so as to confe r standing to prosec ute their claims. They emphasize their pleading alleg ations that eac h business is located in the City (such that it and its patrons are subject to the cha lleng ed ordina nces) and that the or dinance s:

have a chilling eff

ect on [t he Outfitter] Plaintiffs’ businesses in that they discourag e tourists from visiti ng the Coma l a n d G u a dalupe Rivers and Plaintiffs are signific antly harme d there by

. For example, Plaintiff Rockin’ “R” River Rides has experience d a decr ease in reve nues attributable to t h e Ordinanc es in excess of $200,000.00 as measure d betwee n 2006 and 2007 sales to date. Other Ou t fi t ter Plaintiffs have experience d simil ar decr ease s in reve nues. . . . [T] he unlaw fu l and unrea sonable ordinanc es that place

. . . restric tions on the renta l and use of tubes and ice chests within the Comal and Guada lupe Rivers within the City of New Br aunfe ls has been extremely specific and unique, as we ll as particular impact on the Outfitters in that they are a limit ed number of business enter prises and employ ers that rent tubes and ice chests to the g ener al public for use on public water wa y s . T h e substantial investment of the Outfitters, which is in excess of thousands of dollars per Outfitter, in the tubes, ice chests and associate d products, which have become illega l to use within the public water

way s, have taken the value of said persona l propert y o f t h e Outfitter Plaintiffs without due proce ss, and i n a manner which is totally unrea sonable, arbitra

ry , and capr icious. The reg ulation of the siz e of cooler s which may be u s ed (and specific ally and particula rly which the Outfitters can no longe r rent) a re unique ly

causing harm to the Outfitter Plaintiffs.

The Outfitter P l ai n t iffs additionally plead, in a section of their petition titled “Specia l I njury and Particular I

njury of Plaintiffs”:

11Outfitter Plaintiffs also are suffe ring partic u l ar and unique injury from that of the

g ener al public in that they are being denied their ability to use their persona l proper ty , vis-a-vis ice chests and tubes, in the conducting of their business for renta l purposes. The owner ship of th e p er s onal proper ty is a vested proper

ty rig ht which has been arbitra rily , unrea sonably , and capr iciously restric ted by De fendant, City of New Br aunfe ls’ enfor ceme nt of t he C ooler and Container Ordinance in a manner t hat i s unlawful and violates the rele vant p o rt i ons of the Alcoholic Be vera g e Code and Hea lth and Safety

Code cited a

bove.

We observe that althoug h the Outfitter Plaintiffs complain that the City has in some

manner “re stricted” t h ei r ab ility to rent tubes, ice chests, and unspecifie d “assoc iated products” throug h the challeng ed ordinanc es, the sole direct restric tion on them or their proper ty they identify is the C o o l er & C ontainer Ordinanc e’s prohibition ag ainst ice chests that exceed six teen quarts in capa city

. L ibera lly construing their pleading s, the Outfitter Plaintiffs alleg e they had invested in ice chests with larg er capa cities for purposes o f renting them to tubers and that the Cooler &
C o ntainer Ordinanc e subsequently banned those cooler s from the portions of the Co m al an d Guada lupe within City limit s. The pleading s, liberally construed, further alleg e that this restric tion denuded those cooler s of their value as proper ty that can be rente d to tubers wishing to tube within City limit s. Fur

ther, the City acknow ledg es that the Outfitter Plaintiffs’ alleg ations support t h e infere nce tha t they

incurre d additional expenses in pur chasing smaller coole rs comply ing w ith the ordinanc e to re place the non-c ompliant larg er one s.

By all egi ng that the Cooler & Container Ordinanc e restric ted their use of their
proper ty , cause d them to incur additio n al expenses, and damag ed or destroy ed their marke t for larg er cooler renta ls within the City limit s, the Outfitter Plaintiffs ha ve demonstrated the require d actua l,

concr ete, and particula

rized infring ement of their leg ally protec ted interests nece ssary for standing

.

12See T

ex a s De p ’t of Ins. v. Rec onvey ance Servs ., 240 S.W .3d 418, 437, 439 (Tex. App.—Austin 2007, pet. filed) (business had standing to challeng e ag ency actions that it alleg ed destroy ed marke t for its service s in Texas); Lake Medina Conserv. Soc’y v. Texas Natura l R es. Conserv.
Comm’n , 980 S.W .2d 511, 516 (Tex. App.—Austin 1998, pet. denied) (assoc iation compri s ed of lakeside proper

ty owner s and water front businesses had standing to challeng e administrative action
t h at would cause lake levels to drop); Texas Rivers Prot. Ass’n v. Texas Natural Res. C o n s er v. Comm’n , 910 S.W .2d 147, 151-52 (Tex. App.—Austin 1995, writ denied) (citing harm to canoe trip
g u id e s ’ “ b u s iness opportunities” as supporting individual g uides’ s ta n d in g to c h a ll e n g e a g e n c y a c ti o n that would lower river levels); see also National Rifle Ass’n of Am. v. Magaw , 132 F.3d 272, 281-84 (6th Cir. 1997) (fire arms manufa cture rs had standing to c halleng e wea pons restric tions; obser

ving that “cour ts ha ve routinely found

. . . a justiciable controve rsy when suit is broug ht by the plaintiff subject to a reg ulatory burden imposed by a statute”); W edges/Ledge

s of Cal., Inc. v. City of

Phoenix , 24 F.3d 56, 61 (9th Cir. 1994) (“I t is well s ettled that a pr ovider of g oods or servic es has standing
to c h alleng e g overnme nt reg ulations that direc tly aff

ect its customers and restric t its marke t.”) (citi n g

case s). We likewise conclude that the Outfitter P l aint iffs have sufficie ntly alleg ed their injuries

are “fa irly trac eable ” to the Cooler & Container Ordinanc e and would li kely be redr essed by invalidating the cooler restric tion (which would allow them to rent the l ar ger coolers ag ain). See Lujan , 504 U.S. at 560-61. Consequently , the Outfitter Plaintiffs have demonstrat ed s t an ding to
prosec ute their claims seeking to invalidate the Cool er & C o n t ainer Ordinanc e’s ban on cooler s exceeding six teen qua

rts in capa city

.

13I n contending otherwise, the City urg es t h at the Outfitter Plaintiffs have

not suffic i en t l y p l ed a reg ulatory -taking claim and could not do so beca use the Cooler & Container Ordinanc e does not deprive t h em of all conce ivable uses of the larg er, non-compliant cooler s. Howeve r, as we have noted, a plaintiff is not require d to alleg e the depriva tion of a “veste d rig ht” consti t u t i n g a due-pr ocess violation to demonstrate the requisite infring ement of a “leg ally protec ted interest.” Coastal Habi t a t Alliance , 294 S.W .3d at 287; see Texas Rivers Prot. Ass’n , 910 S.W .2d at 151-52 (plaintiffs challeng ing ag en cy ac t ions that would cause river levels to drop

wer e not require d to demonstrate depriva tion of “veste d rig ht” in river level to have standing ; their ripar ia n o w n e r s h ip a

n d b u siness interests in g uiding canoe trips sufficie ntly distinguished their injury from public at larg e). The City simil arly challeng es whether the Outfitter Plaintiffs could preva il on the merits of their claims, but that issue in this case , ag ain, is distinct from the threshold question of whether they have standing to advanc e those claims. See Bland Indep. Sch. Dist. , 34 S.W .3d at 554- 55 (distinguishing threshold issue of standing from mer its).

As for the ot her three challeng ed ordinanc es and the portions of the Cooler
& Container Ordinanc e other than the cooler -size restric tion (i.e., the ban on g lass an d Sty rofoa m c ontainers, require ments for secur ing cooler s, and the one-c ooler-pe r-pe rson limit ), the Outfitter Plaintiffs have not pled any fac ts demonstrating injury from any direct restrictions on themselves or their proper ty

. Unlike the case with the cooler -size restric tions, there is no alleg ation that the Outfitter Plaintiffs sell or re nt beer bong s, sell or rent container s with a volume capa city of less than five ounces, or that the outfitters own proper ty that is subject to the Parks Ordinanc e’s alcohol ban. Nor have the Outfitter Plaintiffs pled any fa ct s d em o nstrating that the Cooler &

14Container Ordinanc e’s require ments for secur ing cooler s have cause d them to incur additional costs

or repla ce exis ting cooler s. I nstead, based on their pleading s, the Outfitter Plaintiffs’ injury , if any , must derive solely from a detrimental impact of these restric tions on the marke t for their renta l tubes and ice chests.
As previousl y ex plained, g overnme nt reg ulations that direc tly impact a plaintiff’s
customers and restric t its marke t can support standing

. Nonethele ss, as the U.S. Supreme Court has observe d, wher e the “plaintiff’ s asser ted injury arises from the g overnme nt’s al l egedly unlawful
reg ulation

. . . of someone else , . . . . standing is not prec luded, but is ordinarily ‘substantially more difficult’ to establish.” Lujan , 5 0 4 U. S

. at 5 6 2 (citations omitted). I n such instances, “[t] he exis tence of one or m ore of the essential elements of standing ‘depe nds on th e u n fe t t er ed choice s made by independe nt actor s not befor e the courts and whose exercise of broa d and leg itimate discretion the courts cannot presume either to c ontrol or predic t,’ and it become s the burden of the plaintiff to adduce fac ts showing that those choice s have been or will be made in such a manner as
to produce causa tion and permit redr essability of injury .” Id

. (citations omitted). The Outfitter
P l ai ntiffs satisfied this standard with reg ard to the City ’s cooler -size restric tion—they pled t h ey owned larg er, non-compliant cooler s that they can no longe r rent to their tubing customers beca use the customers are prohibited from using them within the City

. They did not, howeve r, sufficie ntly plead f acts de monstrating injury from the other

challeng ed re strictions. The Outfitter Plaintiffs do not alleg e fac ts demonstrating that the city wide restric tion
ag ainst beer bong s, the prohibitions ag ainst container s less than five ounces in c apac ity or g lass or Sty rofoa m c ontainers in the rivers, the require ment that cooler s be sec ured, or the ban on drinking

15in public parks has cause d them to incur a concr ete and particula rized in j u ry . There is simply no

causa l linkag e alleg ed that would demonstrate why or how a potential customer’ s inability to use a beer bong in the City , drink alcohol in a public park, and car ry less-than-f

ive-ounc e open container s

or g lass bottles in the rivers, or the require ment that they secur e their ice chests results in pote ntial
customers deciding not to rent inner tubes and ice chests from t h e Ou tfitter Plaintiffs when they would otherwise do so. Nor do the Outfitter Plaintiffs identify any injury they incurre d from the onecooler -per -per son limit

. Although they broadly co m p l ai n of lost reve nues they “attribute” to the ordinanc es collectively , thes e b ar e conclusions are insufficient to aff irmatively demonstrate their standing

. See Miranda , 133 S.W .3d at 226 (plaintiff has burden of alleg ing facts that aff irmatively demonstrate tr ial court’s subjec t-matter jurisdiction).

Ultimately , the Outfitter Plaintiffs rely on a broad alleg ation that t he ordinanc es collectively “discoura g e tourists from vis i t i n g t h e Comal and Guada lupe Rivers.” The g ener al economic impact from a decr ease in tourism would be one that the Outfitter Plaintiffs would share with other New Br aunfe ls citizens. Such an injury is not sufficie ntly particula rized and distinct from the public at lar g e to conf er standing

. See Lomas , 223 S.W .3d at 307-08.
I n th e al terna tive, the Outfitter Plaintiffs arg ue that their pleading s demonstrate their standing as taxpay ers to challeng e the ordinanc es. Under a narr ow exception to the standing require ment that a p l aint iff show a particula rized injury distinct from that suffe red by
t h e g ener al public to challeng e a g overnme ntal action, a taxpay er has standing to sue to en j o i n the illega l expenditure of public funds without showing a distinct injury

. Bland , 34 S.W .3d at 555-
5 6

. Ho we v er, as the City points out, the Outfitter Plaintiffs have not soug ht to enjoin the

16i l l egal expenditure of funds by the City

. See id. at 556. Consequently , they cannot re l y o n t h e

taxpay er- standing exception here

.

I n sum, the district court p ro p er l y dismiss ed for lack of standing the Outfitter Plaintiffs’ claims challeng ing the Be er Bong Ordinanc e, the Five -Ounc e Container Or dinance , the Parks Or dinance , and the por tions of the Cooler & Container Or dinance

o t h er than the cooler -size limit ation. Howeve r, we conclude that the Outfitter Plainti ff s d i d demonstrate their standing to prosec ute their claims challeng ing the coo l er -s i z e limit ation.
Fur thermore , it follows from this holding that the Outfitter Plaintiffs likewise have stan d ing to
prosec ute their claims for a decla ration that the Comal an d Gu ad al upe are navig able streams whose water s and riverbe ds are owned by the State and held in trust for the people of the State. The City dismiss es this claim as a “re d herr ing,” in the view that the question of the rivers’ navig ability is a mere abstrac t question of law unre lated to the parties’ dispute conce rning the ordinanc es. We disag ree . Appellants seek a decla ration as to the rivers’ navig ability as a predic ate to a decla ration that the City “may not exert its police power s ag ainst the State of Texas or on the stateowne d proper

ty consisting of the water and riverbe ds of t he C omal and Guadalupe Ri vers as they flow throug h the City .” Although the navig ability issue might have been rende red moot if we ha d held that the Outfitter Plaintiffs lacke d standing to challeng e any of the ordinanc es, as the City
sug g ests, we have instead conclude d that the Outfitter Plaintifs have standing to challen ge the Cooler & Container Ordinanc e’s cooler -size restric tion. Consequently , th e i s s u e o f navig ability

17rema ins ripe and justiciable, and the Outfitt er P l ai n t iffs have standing to asser t their decla

ratory claim conce rning that issue for the same rea sons t h ey h av e standing to challeng e the cooler -size limit ation.

Williams
I n addition to the four Outfitter Plaintiffs, a fifth individual plaintiff, Stone Randall Wil liams, alleg ed that he was cited for violat i n g t h e Cooler & Container Ordinanc e. Wil liams

asser ts that the prospec t of a fine or sanctions for his alleg ed violation confe rs upon him standing to challeng e the ordinanc e in this proce eding

. The City responds that the district court lacke d subjectmatter jurisdiction over Wil liams’s claims under State v. Morales , 869 S.W .2d 941 (Tex. 1994). I n Mo r a l es , the Texas Supreme Court held that courts lack jurisdiction to g rant injunctive o r decla ratory relief to restra in enfor ceme nt of a criminal statute unless the statute is unconstitutional and its enfor ceme nt will result in irrepa rable injury to vested proper ty rig hts. Id. at 945, 947. As the
C i t y u rge s , Wil liams had no vested property rig ht in car ry ing a cooler of a particula r si ze int o t h e Comal River or committing any of t he other acts prohibited by the ordinance. Consequently , the 7 district court prope rly

dismiss ed Willi ams’s cla ims for want of subje ct-matter jurisdiction.

Even though L indsay Michelle Crim did not file a notice of ap p eal, Appellants 7 arg ue—appa

rently as part of their eff

orts to demonstrate STOP’s associational standing —that Crim had individual standing to challeng e the Parks Ordin ance beca use she rec eived a citation for violating it. As with Wil liams, Crim’s claims wer e proper ly dismiss ed under Morales beca use she had no veste d rig ht to possess alcoholic beve rag es in the City ’s par ks. 18STO P Finally , we consider whether STOP has associational standing to asser t the claims.
An as s o ci ati on has st anding to sue on behalf of i ts members if: (1) its members would otherwi s e have standing to sue in their own rig ht; (2) the interests the org anization seeks to protec t are g erma ne
t o the orga

nization’s purposes; and (3) neither t he claim asser ted nor the relief request ed re q u i re s the participa tion of individual members in the lawsuit. Texas Ass’n of Bus ., 852 S.W .2d at 446-47 (adopting the test from Hunt v. W ashington State Apple Adve r. Comm’n , 432 U.S. 333, 343 (1977)) ; Hende e v. D ewhurst , 228 S.W .3d 354, 382 (Tex. App.—Austin 2007, pet. denied). E ach e lement of this test is satisfied with respe ct to the claims that the Outfitter Plaintiffs have standing to asser t. As for the first el em en t , we have held that individual members of STOP—the Outfitter Plaintiffs—have standing to seek a decla ration reg arding the navig ability of the Comal and Guadal u p e Rivers and to asser t the other claims to the extent they challeng e the cooler -size restric tion in the Cooler & Container Ordinanc e. Appellants do not alleg e additional fac ts that would demonstrate the individual standing of any other STOP members. Reg arding the sec ond element, the pleading s ref

lect that STOP’s purpose—a s sug g est ed b y its name, Stop The Ordinanc es Please—is to de fea t or end the e nforc ement of the challeng ed ordina nces. F inally , conce rning the third element, STOP’s claims do not require the participa tion of its individual members beca use it seeks onl y p ro s p ec t i v e decla ratory and injunctive relief , raises only questions of law, and need
not prove the individual circ umstances of its members to obtain reli ef

. S ee Texas Ass’n of Bus. , 852 S.W .2d at 448. We conclude that STOP has associational standing to prosec ute the navig ability claim and the c laims challeng ing the cooler -size restriction.

19CONCLUSION
We reve rse the district court’s j u d gm ent dismiss ing STOP’s and the Outfitter Plaintiffs’ claims seeking a decla ration that the Comal and Guada lupe Rivers are navig able and their claims challeng ing the Cooler & Container Ordinanc e’s cooler -size r e s triction. We rema nd these c laims to the district court for f urther pr ocee dings. We other wise af firm the judg ment.

__________________________________________ Bob Pembe rton, J ustice
Be fore Chief J ustice L aw, Justi ces Pembe rton and Waldrop; Chief J ustice L aw not par ticipating Affir med in part; Rever sed and Rema nded in par

t Filed: F ebrua

ry 19, 2010

20