                                                                                     ACCEPTED
                                                                                03-14-00198-CV
                                                                                       4356321
                                                                      THIRD COURT OF APPEALS
                                                                                 AUSTIN, TEXAS
                                                                            3/3/2015 4:04:06 PM
                                                                              JEFFREY D. KYLE
                                                                                         CLERK
                          No. 03-14-00198-CV

                    IN THE THIRD COURT OF APPEALS
                            at AUSTIN, TEXAS


                   CITY OF NEW BRAUNFELS, TEXAS,
                                              Defendant-Appellant
                                 v.
                                                             RECEIVED IN
       STOP THE ORDINANCES PLEASE, W.W. GAF, INC.,
                                                 3rdD/B/A
                                                     COURT OF APPEALS
                                                     AUSTIN, TEXAS
    ROCKIN “R” RIVER RIDES, TEXAS TUBES, TOURIST ASSOCIATED
                                                 3/3/2015 4:04:06 PM
   BUSINESSES OF COMAL COUNTY; UNION RIVER LLC d/b/a LANDA
                                                    JEFFREY D. KYLE
   RIVER TRIPS; CHUCK’S TUBES; WATERPARK MANAGEMENT,         INC.;
                                                         Clerk
     TRI-CITY DISTRIBUTORS, LP and STONE RANDALL WILLIAMS,
                                            Plaintiffs-Appellees


        Appeal from the 207th District Court of Comal County, Texas
                         Cause No. C2007-0387B

          BRIEF OF AMICI CURIAE IN SUPPORT OF APPELLANT

                                        William G. Bunch
                                        State Bar No. 03342520
                                        bill@sosalliance.org
                                        Kelly D. Davis
                                        State Bar No. 24069578
                                        kelly@sosalliance.org
                                        Save Our Springs Alliance
                                        905 W. Oltorf St., Ste. A
                                        Austin, Texas 78704
                                        T: 512-477-2320
                                        F: 512-477-6410

     Attorneys for Amici Curiae the Texas Rivers Protection Association,
San Marcos River Foundation, Greater Edwards Aquifer Alliance, and
Save Our Springs Alliance
                          TABLE OF CONTENTS

INDEX OF AUTHORITIES……………………………………………………………………………..ii

I. AMICUS DISCLOSURE………………………………………………………………………….……1

II. BACKGROUND………………………………………………………………………………………...1

  A. The Comal and Guadalupe Rivers………………………………………………………1

  B. Amici’s Interests………………………………………………………………………………..3

III. ARGUMENT…………………………………………………………………………………………...6

  A. Appellants have failed to meet their burden of showing, with
     unmistakable clarity, that the legislature intended to preempt the
     ordinances...…………………...………………………………………………………………….6

  B. The Ordinances are a valid exercise of the City’s police power because
     they protect the public health, safety, and welfare………………………………8

  C. Evidence in the record shows that the Ordinances have the intended
     effect of curbing trash in the Rivers…………………………………………………..10

  D. Home-rule authority must be preserved to ensure issues are addressed
     effectively and with community input………………………………………………12

  E. The Ordinances are a valid exercise of the City’s police powers over
     navigable waters and are not preempted by the Texas Constitution nor
     the Texas Parks and Wildlife Code………………………………………………...….15

  F. Texas Local Government Code § 551.002 provides further support that
     the Ordinances are a valid exercise of the City’s police power…….……...19

IV. CONCLUSION……………………………………………………………………………………….21

CERTIFICATE OF COMPLIANCE……………………………………………………...………….22

CERTIFICATE OF SERVICE………………………………………………………………………...23

                                     i
                           INDEX OF AUTHORITIES

CASES

Carrithers v. Terramar Beach Cmty. Imp. Ass’n, Inc., 645 S.W.2d 772 (Tex.
1983)…………………………………………………………………………………………….18, 18 n.5

City of Brookside Vill. v. Comeau, 633 S.W.2d 790 (Tex. 1982)……….…7, 9, 13, 14

City of Houston v. Bates, 406 S.W. 3d 539 (Tex. 2013).………………………..……7, 21

City of Sherman v. Mun. Gas Co., 127 S.W. 2d 193 (Tex. 1939)…………….……6 n.2

City of Waxahachie v. Watkins, 275 S.W. 2d 477 (Tex. 1955)……………………..…..8

Dallas Merch.’s & Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489 (Tex.
1993)………………………………………………………………………………………………...……6, 7

Diversion Lake Club v. Heath, 86 S.W. 2d 441 (Tex. 1935)………15, 15 n.4, 16, 18

Edge v. City of Bellaire, 200 S.W. 2d 224 (Tex. Civ. App.—Galveston 1947, writ
ref’d)………………………………………………………………………………………………………..…9

Gorieb v. Fox, 274 U.S. 603 (1927)………………………………………………………………13

Guadalupe-Blanco River Auth. v. Pitonyak, 84 S.W. 3d 326 (Tex. App.—Corpus
Christi 2002, no pet.)……………………………………………………………………...……16, 17

Heard v. Town of Refugio, 103 S.W. 2d 728 (Tex. 1937)………………….……………18

Hunt v. City of San Antonio, 462 S.W.2d 536 (Tex. 1971)………………………………..7

In re Sanchez, 81 S.W. 3d 794 (Tex. 2002)…………………………………………………..21

Int’l Ass’n of Fire Fighters, Local 1173 v. City of Baytown, 837 S.W.2d 783 (Tex.
App.—Houston [1st Dist.] 1992, writ denied)…………………………………………….…7

Lower Colo. River Auth. v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975)…......6


                                       ii
Proctor v. Andrews, 972 S.W. 2d 729 (Tex. 1998)…………………………………………..6

Selman v. Wolfe, 27 Tex. 68 (1863)………………………………………………………….....17

STOP v. City of New Braunfels, 306 S.W. 3d 919 (Tex. App.—Austin 2010, no
pet.)……….…………………………………………………………………………………………………14

Tex. River Barges v. City of San Antonio, 21 S.W. 3d 347 (Tex. App—San
Antonio 2000, pet. denied)………………………………………………………8-9, 15, 17, 18

Welder v. State, 196 S.W. 868 (Tex. Civ. App.—Austin 1917, writ ref’d)..…18 n.5

STATUTES AND CITY ORDINANCES

Tex. Health & Safety Code § 361.0961……………………………………..……………...…20

Tex. Loc. Gov’t Code § 551.002……………………………………………….….19, 20, 20 n.6

Tex. Parks & Wild. Code § 1.011(c)…………………………………………………………….15

New Braunfels, Tex., Code ch. 86, art. I, § 86-14(1) (2014) (“Cooler
Ordinance”)……………………………………………………………………………………..…passim

New Braunfels, Tex., Code ch. 86, art. I, § 86-14(2) (2014) (“Disposable
Container Ordinance”)………………………………………………………………………..passim

Austin, Tex., Code of Ordinances, Title 6, ch. 6-6, § 6-6-2……………….……………13

CONSTITUTIONAL & CHARTER PROVISIONS

Tex. Const., art. XI, § 5………………………………………………………………………..………..6

Tex. Const. art. XVI, § 59………………………………………………………………..…………..15

New Braunfels City Charter § 2.01………………………………………………………….……8




                                      iii
ADDITIONAL SOURCES

THE TEXAS ALMANAC ONLINE, available at www.texasalmanac.com.........................1-3

TEXAS STATE HANDBOOK ONLINE, available at
www.tshaonline.org/handbook/online..........................................................................1-3

Texas Municipal League, Handbook for Mayors and Councilmembers (2013
ed.)……………………………………………………………………………………………………………..6

6A EUGENE MCQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS § 24.10 (3rd ed.
1984)…………………………………………………………………………………………………..……..9

Greg Bowen, Holiday Garbage up 438 Percent, NEW BRAUNFELS HERALD-ZEITUNG,
July 2, 2014……………………………………………………………………………...……………….11

Asher Price, Researchers Find Carcinogen Dropoff in Lady Bird Lake Following
Ban, AUSTIN AMERICAN-STATESMAN, June 16, 2014………………………...……………….14

Tex. Comm’n on Envtl. Quality, Gem Seal of Tex., Inc. v. City of Austin, Docket
No. 2006-0056-MIS, Exec. Dir.’s Reply Br. (May 25, 2007)………………….….13, 14




                                                      iv
                               I. AMICUS DISCLOSURE

       This brief is tendered on behalf of amici curiae the Texas Rivers

Protection Association, San Marcos River Foundation, Greater Edwards

Aquifer Alliance, and Save Our Springs Alliance, Inc. The Texas Rivers

Protection Association made a donation to Save Our Springs Alliance to help

cover the Alliance’s costs of preparing this brief. See Tex. R. App. P. 11(c). The

remainder of costs for preparation was covered by general donations to the

Save Our Springs Alliance from individuals, businesses, and foundations.

                                   II. BACKGROUND

       A. The Comal and Guadalupe Rivers 1

       The Comal River is the shortest river in Texas, at two-and-a-half miles,

and is contained entirely within the City of New Braunfels. As a spring-fed

river, the Comal begins at Comal Springs in Landa Park and flows southeast

through New Braunfels until it empties into the Guadalupe River. The Comal

Springs—the largest springs in Texas and the American Southwest—are

located in New Braunfels’s Landa Park, a popular picnic and recreation spot



1The information in this section comes from first-hand knowledge of the rivers, as well as
the following sources: THE TEXAS ALMANAC ONLINE, www.texasalmanac.com, and the TEXAS
STATE HANDBOOK ONLINE, www.tshaonline.org/handbook/online , both published by the
Texas State Historical Association, articles on “Comal Springs,” “Secondary Streams of
Texas,” “Comal County,” “Guadalupe River,” and “New Braunfels.” Last accessed Feb. 25,
2015.
                                             1
since the 1860’s and the home of seventy-six species of trees, including

several ancient live oaks.

      Unsurprisingly, the clear water emanating from the springs has

attracted people to the area for hundreds of years. These springs were a

favorite camping place for native Indian tribes, and many artifacts and burial

mounds have been found. In the mid-1800’s, German pioneers established the

City of New Braunfels (the City), which soon became the new German center

for Texas. These industrious settlers began harnessing the Comal Springs for

power, and the German heritage of the area is still celebrated today.

      The Comal River is one of three major tributaries to the Guadalupe

River, with their juncture in the middle of town. Although the Guadalupe is

quite a bit larger, at 409 miles, it holds historic significance for the City as the

site of one of the earliest Franciscan missionaries. It is difficult to overstate

the rivers’ contribution to New Braunfels’s quality of life and economic

prosperity.

      Today, the Comal and Guadalupe Rivers support a variety of

recreational activities, including fishing, swimming, river tubing, rafting,

kayaking, and driving along scenic river parkways. The popular water park

resort Schlitterbahn’s sole source of water is the Comal River, and the nearby

Comal Baths have been the site of city-conducted swimming lessons since

                                          2
1900. The Guadalupe River hosts the primary trout fishery in the state,

supporting a thriving sport-fishing industry that relies on the health of the

ecosystem. Because of the rivers’ beauty and popularity as a recreation area,

owners of riverfront properties may choose to rent their property out to

tourists, use it as a vacation home, or live there with full-time access to the

river. In addition to their economic and recreational value, the Comal and

Guadalupe Rivers support a variety of plant and animal life unique to Central

Texas’ spring-fed rivers. With so much to see and do, it is easy to see why

each year thousands of tourists come to enjoy New Braunfels and its rivers.

Among those with a strong interest in keeping Texas rivers clean are the four

amici curiae represented in this brief.

      B. Amici’s Interests

      As organizations concerned with the ecological integrity and economic,

recreational, cultural, and aesthetic value of the waterways that mark the

Texas Hill Country, amici curiae have a fundamental interest in ensuring that

home-rule cities and their citizens maintain the authority to legislate at the

local level for the purposes of protecting water quality and decreasing

pollution for the benefit of all people.

      The Texas Rivers Protection Association (TRPA) is a non-profit

organization led by pro-river volunteers across the State representing

                                           3
landowner coalitions, conservationists, canoe and kayak clubs, and fishing

associations. Its members represent a broad and diverse cross-section of

conservation and recreation groups and individuals with a common concern

for the quality of Texas’s natural rivers. TRPA’s mission is to protect the flow,

water quality, and natural beauty of the rivers of Texas, promote awareness of

the rights of the public and riparian landowners and foster a mutual respect,

educate members and the public about conserving Texas rivers, and acquire

property and easements to provide access to rivers.

      The San Marcos River Foundation (SMRF) is a non-profit formed in

1985 by San Marcos citizens, riverside landowners, the San Marcos Lions

Club, and other civic groups with a mission to preserve public access to the

San Marcos River and protect the flow, natural beauty, and purity of the river

and its watershed for future generations. SMRF works toward this goal with

educational events, river cleanups, purchasing riparian land, and water-

quality testing.

      The Greater Edwards Aquifer Alliance (GEAA) is an organization

dedicated to protecting and preserving the Edwards Aquifer and the Hill

Country’s scenic beauty and cultural heritage for the benefit of all residents,

especially the 1.5 million Texans who rely on the Aquifer for drinking water.

Its members include citizen-based conservation groups as well as groups from

                                        4
the religious, business, and historic preservation communities, stretching

from Del Rio to Austin. GEAA groups work locally with a common

commitment to education and action based on sound science and sustainable

economic principles.

      Save Our Springs Alliance, Inc. is a non-profit, charitable organization

dedicated to the preservation of the Edwards Aquifer, its springs and

contributing streams, and to the natural and cultural heritage of the Hill

Country region, with a special emphasis on Barton Springs.

      Consistent with the mission of these organizations, amici support New

Braunfels’s authority to enact the ordinances at issue here. These public

health and safety ordinances help preserve the economic, cultural, spiritual,

recreational, and ecological value of the Comal River and that portion of the

Guadalupe River within the City’s jurisdiction. Maintaining the purity and

safety of these majestic ecosystems through local regulation will enhance the

public’s use and enjoyment of these rivers within the City. Given the current

water shortages facing the State, Texas cities are challenged to exercise their

traditional home-rule powers in ways necessary to protect and sustain their

local and increasing threatened water resources. Amici curiae thus have a

legal interest in upholding a home-rule city’s authority to enact ordinances

designed to protect rivers within municipal boundaries. Beyond regulations

                                       5
focusing on environmental protection, amici also have a legal interest in

preserving the principle of home rule, which has been defined as “the right of

citizens at the grassroots level to manage their own affairs with minimum

interference from the state.” Texas Municipal League, Handbook for Mayors

and Councilmembers, at 8 (2013 ed.).

                                    III. ARGUMENT

    A. Appellants have failed to meet their burden of showing, with
       unmistakable clarity, that the legislature intended to preempt the
       ordinances.

       The City of New Braunfels, and all Texas home-rule cities, derive their

powers from the Texas Constitution. See Tex. Const. art. XI, § 5; Proctor v.

Andrews, 972 S.W. 2d 729, 733 (Tex. 1998). Home-rule cities “possess the full

power of self government and look to the Legislature not for grants of power,

but only for limitations on their power.” Dallas Merch.’s & Concessionaire’s

Ass’n v. City of Dallas, 852 S.W. 2d 489, 490-91 (Tex. 1993). Accordingly, Texas

home-rule cities have “broad discretionary powers,” and, absent legislation or

constitutional provisions to the contrary, “a home rule municipality is free to

regulate itself in any manner it chooses.”2 Id. at 490; Lower Colo. River Auth. v.

City of San Marcos, 523 S.W.2d 641, 643 (Tex. 1975).


2 In contrast, counties and general law cities have only those powers prescribed by the
legislature by general law. City of Sherman v. Mun. Gas Co., 127 S.W. 2d 193, 196 (Tex.
1939).
                                             6
      The legislature may limit the power of home-rule cities either expressly

or by implication, but the legislature’s intent to limit such powers must appear

with “unmistakable clarity.” City of Houston v. Bates, 406 S.W. 3d 539, 546

(Tex. 2013) (citing Dallas Merch.’s, 852 S.W. 2d at 491). When a home-rule city

ordinance is alleged to conflict with a state statute, a court’s duty is to

reconcile the two “if any fair and reasonable construction of the apparently

conflicting enactments exist[s] and if that construction will leave both

enactments in effect.” Int’l Ass’n of Fire Fighters, Local 1173 v. City of Baytown,

837 S.W. 2d 783, 787 (Tex. App—Houston [1st Dist.] 1992, pet. denied).

      This “unmistakable clarity” test and its corollary—that a home-rule city

ordinance be upheld whenever there is “any fair and reasonable construction”

of the ordinance and a state law alleged to be in conflict with the ordinance

“that will leave both enactments in effect”—control the outcome of this case.

      In applying this test, courts are hesitant to limit the authority granted to

home-rule cities by the Texas Constitution. Hunt v. City of San Antonio, 462

S.W.2d 536, 539 (Tex. 1971). In reviewing a challenge to a municipality’s

regulatory action, a court’s role is “necessarily circumscribed as appropriate

to the line of demarcation between legislative and judicial functions.” City of

Brookside Vill. v. Comeau, 633 S.W. 2d 790, 792 (Tex. 1982). A city ordinance

is presumed to be valid, and courts have no authority to interfere with matters

                                         7
of municipal government unless a charter provision or ordinance enacted

thereunder is shown to be “unreasonable and arbitrary—a clear abuse of

municipal discretion.” Id. Therefore, a party challenging an ordinance bears

an “extraordinary burden” of establishing that “no conclusive or issuable fact

or condition existed” which would authorize a city’s enactment of the

ordinance. Id. at 792-93. If the evidence before the court reveals an issuable

fact in this respect, such that reasonable minds may differ as to whether a

particular ordinance is reasonable, the ordinance must stand as valid. Id. at

793. In making this assessment, a court must give “due regard to all

circumstances of the city, the object sought to be attained, and the necessity

existing for the ordinance.” City of Waxahachie v. Watkins, 275 S.W. 2d 477,

481 (Tex. 1955).

   B. The Ordinances are a valid exercise of the City’s police power
      because they protect the public health, safety, and welfare.

      Pursuant to its police power, New Braunfels has the authority to enact

the Ordinances. The New Braunfels City Charter expressly declares that the

City “shall have all powers possible for a home rule city to have under the

constitution and laws of the State of Texas as fully and completely as though

they were specifically enumerated in this charter.” City Charter, § 2.01. This

provision incorporates the police power as a power of the City. See Tex. River


                                       8
Barges v. City of San Antonio, 21 S.W. 3d 347, 355 (Tex. App—San Antonio

2000).

      An ordinance is a valid exercise of a city’s police power if the regulation

was adopted to accomplish a legitimate goal, that is, it has a “substantial

relationship” to the protection of the public’s general health, safety, or

welfare. Comeau, 633 S.W. 2d at 793. Although the exact parameters of the

police power are difficult to define, courts have found it useful to think of it as

the “power to anticipate and prevent dangers and to protect the inhabitants of

a community, and in so doing, to restrain individual tendencies.” Tex. River

Barges, 21 S.W. 3d at 355 (citing 6A EUGENE MCQUILLIN, THE LAW OF MUNICIPAL

CORPORATIONS § 24.10 (3rd ed. 1984)). Further, “if there is an issuable fact as

to whether the ordinance makes for the good of the community, the fact that it

may be detrimental to some private interest is not material in assessing an

ordinance’s validity.” Id. (citing Edge v. City of Bellaire, 200 S.W. 2d 224, 227

(Tex. Civ. App.—Galveston 1947, writ ref’d)).

      Here, the Ordinances are a valid exercise of the City’s police powers and

are not unreasonable or arbitrary. The City enacted the Ordinances to address

pollution and litter problems specific to the Comal River and that short piece

of the Guadalupe River within the City’s jurisdiction. New Braunfels., Tex.,

Code ch. 86, art. I, §86-14. The goal of the Ordinances is to protect the public

                                         9
health and welfare by restricting within the Rivers certain containers that

result in large amounts of trash ending up in the Rivers. Preventing the

pollution and degradation of the Rivers bears a substantial relationship to the

public health, safety, and general welfare. The fact that individuals are

restrained from doing whatever they want on the Rivers, or that Appellees

suffer reduced revenues, does not render the Ordinances an abuse of

municipal discretion.

   C. Evidence in the record shows that the Ordinances have the
      intended effect of curbing trash in the Rivers.

      In enacting the Ordinances, the City government was reacting to

concerns particular to the City—trash and pollution in the Guadalupe and

Comal Rivers within its borders. Evidence in the record concerning the

amount of trash in the Rivers prior to the Ordinances’ enactment

demonstrates the need to regulate activities that result in such pollution. In its

legislative findings, the City Council set forth the problems it intended to

address through the Ordinances.

      In his deposition, the Manager of the City’s Solid Waste Division noted,

“the City has experienced a significant reduction in the amount of trash

and litter that was collected and accounted for the years 2012 and 2013 in

comparison to year 2011.” Michael Mundell Aff., attached to Def.’s Resp. to


                                       10
Pls.’s Mot. Entry of Final J., filed Feb. 7, 2014) (attached as Ex. A). After

becoming effective on January 1, 2012, the Disposable Container Ordinance

greatly contributed to the reduction in trash found in the rivers during the

years 2012 and 2013. Most astonishingly, the Comal River alone yielded 97

tons of trash and litter in 2011 before the enactment of the Disposable

Container Ordinance. The amount of trash and litter collected from the Comal

River overwhelmingly decreased—with 24 tons in 2012 and 34 tons in

2013—after the enactment of the Disposable Container Ordinance. Thus, the

City collected 75% and 65% less trash and litter from the Comal River,

respectively, in years with the Ordinance in effect compared to without.

Mundell Aff. The record shows not only that the City was facing a serious

problem of trash in the Rivers, but also that the Ordinances serve the intended

purpose of decreasing pollution and trash in the Comal River and New

Braunfels’s piece of the Guadalupe.

      Following the trial court’s ruling granting summary judgment for

Appellees and enjoining the Ordinances, the amount of trash and litter

collected from the Comal River drastically increased by 438% during the 2014

Memorial Day weekend in comparison to the 2013 Memorial Day weekend.

Greg Bowen, Holiday Garbage up 438 Percent, NEW BRAUNFELS HERALD-ZEITUNG,

July 2, 2014 (attached as Ex. B). These data, reported in the City of New

                                         11
Braunfels’s River Services Update, show the amount of trash collected was

significantly higher when the Ordinances were not in effect. Prohibiting

behaviors that lead to more trash ending up in the rivers protects the public

health and promotes the general welfare. Thus, adequate governmental

interests are served by regulating the amount and type of disposable

materials being brought in to the Rivers. At a minimum, these data present an

“issuable fact” over whether the regulations are reasonably related to a

legitimate governmental interest. The Ordinances, therefore, must stand as a

valid exercise of the City’s police power.

   D. Home-rule authority must be preserved to ensure local conditions
      are addressed effectively and with community input.

      The City’s enactment of the Ordinances as a response to the problem of

huge amounts of trash in the Rivers highlights the importance of home rule.

Home rule assumes that governmental problems should be solved at the

lowest level possible, closest to the people, with limited reach and addressing

local conditions. Local governing bodies are most in tune with the particular

issues that face their jurisdictions and can tailor regulations most apt to

resolve those local issues. Courts have repeatedly acknowledged the

judiciary’s limited role in disturbing local enactments unless clearly




                                       12
unreasonable. This principle is embodied in judicial recognition of the

importance of local government’s zoning power:

         State legislatures and city councils, who deal with the situation
         from a practical standpoint, are better qualified than the courts to
         determine the necessity, character, and degree of regulation
         which these new and perplexing conditions required; and their
         conclusions should not be disturbed by the courts unless clearly
         arbitrary and unreasonable.

         Gorieb v. Fox, 274 U.S. 603, 608 (1927). Similarly, localized pollution

problems such as the unique circumstances found on the Comal River and that

short stretch of the Guadalupe within the City are best addressed at the local

level.

         The Texas Supreme Court has upheld an ordinance regulating the

placement of mobile homes, noting that the regulations were important to

preserving public health and property values in the municipality because of

the unique conditions presented there. Comeau, 633 S.W. 2d at 795. Another

example is provided by the City of Austin’s ordinance prohibiting a type of

pavement sealant. Austin, Tex., Code of Ordinances, Title 6, ch. 6-6, §6-6-2. In

2003, Austin officials singled out parking lot sealants as a likely source of

hydrocarbon pollution in Austin’s lakes and creeks. Tex. Comm’n on Envtl.

Quality, Gem Seal of Tex., Inc. v. City of Austin, Docket No. 2006-0056-MIS, Exec.

Dir.’s Reply Br. at 2 (May 25, 2007). Austin banned the sealants in 2006, and


                                          13
studies recently conducted showed a 58% decline in the pollutant, which is

toxic to aquatic life and a likely carcinogen. Asher Price, Researchers Find

Carcinogen Dropoff in Lady Bird Lake Following Ban, AUSTIN AMERICAN-

STATESMAN, June 16, 2014 (attached as Ex. C). In a challenge to the ban before

the Texas Commission on Environmental Quality, Austin’s authority to adopt

ordinances to protect water quality was upheld. Id.; Gem Seal of Tex., Inc. v.

City of Austin, Exec. Dir.’s Reply Br. at 2.

      Like the cities of Brookside Village and Austin, New Braunfels’s

authority to adopt ordinances addressing the unique issues facing the City

should be upheld. As this Court previously acknowledged, New Braunfels

officials became aware of an issue threatening the public health and welfare,

appointed a River Activities Committee to devise possible solutions, and

implemented some of the suggested solutions. 3 STOP v. City of New Braunfels,

306 S.W. 3d 919, 923 (Tex. App.—Austin 2010). This is local government

working at its best and exemplifies why courts will not interfere with a local

regulation absent a “clear abuse of municipal discretion.” See Comeau, 633

S.W. 2d at 792.




3After its passage by the City Council, the Disposable Container Ordinance was challenged
via referendum and upheld by the voters, further demonstrating the importance of
addressing the issues of trash on the river to the local residents. CR:545-49.
                                           14
    E. The Ordinances are a valid exercise of the City’s police powers
       over navigable waters and are not preempted by the Texas
       Constitution nor the Texas Parks and Wildlife Code.

       Appellees erroneously argue that the Ordinances unconstitutionally

“invade the public’s right to use and enjoy the rivers,” because only the State

and duly delegated entities have the right to regulate navigable streams.

Appellees’ Br. at 41 (citing Tex. Const. art. XVI, § 59 and Tex. Parks & Wild.

Code § 1.011(c)). This argument fails because the Ordinances in no way

invade constitutionally protected rights of the public and are a valid exercise

of the City’s police power through its inherent powers as a home-rule city and

by virtue of the Texas Local Government Code.

       It is not in dispute that navigable streams are held in trust for the public

to use for “navigation, fishing, and other lawful purposes,” and that the public

has a right to use navigable streams for commercial as well as recreational

purposes. See Diversion Lake Club v. Heath, 86 S.W. 2d 441, 444 (Tex. 1935);

Tex. River Barges, 21 S.W. 3d at 352. However, the Ordinances do not run

afoul of the Constitution or Parks and Wildlife Code because they do not

interfere with the public’s ability to access and navigate the Rivers. 4



4Although Diversion Lake Club mentions “enjoyment of the river” one could argue that the
Ordinances impair certain individuals’ “enjoyment” of the river, it is clear from the context
that “enjoy” means access to the river and exercise of the right to use it, rather than bring
or do anything one subjectively might find enjoyable. To demonstrate the danger of using
                                             15
       The Ordinances do not prohibit the public from accessing the Rivers, but

rather, make it unlawful “to use, carry, or possess food or beverages in a

disposable container” on the Rivers. New Braunfels, Tex., Code ch. 86, art. I, §

86-14(1). The public’s right to access and navigate rivers does not mean that

anybody has free reign to bring anything into the river they desire, or that a

City cannot exercise its police powers to restrain behavior that could diminish

the public’s safe enjoyment of the river. The right to use the waters is not

without limits. “The fact that navigable streams are held in trust for the

benefit of the public does not mean that the State or a duly-delegated

governmental agency has no authority to restrict navigation on the same.”

Guadalupe-Blanco River Auth. v. Pitonyak, 84 S.W. 3d 326, 340 (Tex. App.—

Corpus Christi 2002); see also Diversion Lake Club, 86 S.W. 2d at 445 (noting

that right to fish in public water does not entail the right to cross or trespass

upon privately owned land in order to reach the water). Indeed, the public’s

right to use the river for fishing and “other lawful purposes” suggests that

governmental entities can and do make unlawful some uses of the river. And

the fact that an activity has historically been lawful does not preclude

governmental action making it unlawful, particularly when circumstances



“enjoy” subjectively, consider this: some might enjoy the river more with disposable
containers, while others enjoy it significantly less without the prohibitions.
                                            16
come to exist that demonstrate problems with that activity—e.g., over 1,400

pounds of trash collected from the Comal River after the 2011 Memorial Day

Weekend.

      Moreover, New Braunfels, as a home-rule city, has been delegated the

police power, and it may exert the police power over the navigable waters

within its boundaries. See Tex. River Barges, 21 S.W. 3d at 355; see also

Guadalupe-Blanco River Auth., 84 S.W. 3d at 340 (“[S]tates and their delegates

may exert police power over the navigable waters in their boundaries...”).

Appellees cite to no cases—and amici could find none—employing the Texas

Constitution or the Texas Parks and Wildlife Code to limit the authority of

cities to regulate use of waterways within their borders.

      Although Appellees contend that only the State can regulate navigable

waters, the cases cited by Appellees stand for the proposition that private

entities cannot interfere with the public’s access to navigate waterways.

Appellees cite an 1863 case in support of its assertion that the City cannot

regulate waterways, but that case is inapposite. See Appellees’ Br. at 41

(citing Selman v. Wolfe, 27 Tex. 68 (1863)). There, the issue was whether the

Legislature, in authorizing a private entity to erect a bridge, had also

conferred the right to obstruct navigation of a stream. Selman, 27 Tex. at 70.

Thus, the analysis centered on the stream as a state highway, and whether a

                                        17
private entity could obstruct its use as a highway. Id.; see Diversion Lake Club,

86 S.W. 2d at 446 (holding public had right to fish in lake created by a dam,

rather than exclusively belonging to owner of land that was flooded by dam);

Carrithers v. Terramar Beach Cmty. Imp. Ass’n, Inc., 645 S.W.2d 772, 774 (Tex.

1983) (holding that individual landowner is without power to convey an

exclusive right to use navigable waters). 5 The case Heard v. Town of Refugio

comes closer—but still falls short of supporting Appellees’ point. See 103 S.W.

2d 728 (Tex. 1937). There, the issue was whether a town or individuals held

title to a river bed located in adjoining tracts of land. Id. at 728-29. The court

noted that among properties owned by cities and towns for public benefit,

river beds were not one. Id. at 734. But nothing in this case suggests that the

City needs to hold title to the river bed to regulate activities on the Rivers for

public purposes.

       More recently, a Texas court expressly upheld a city’s authority to

regulate activities on the river within its jurisdiction. In Texas River Barges v.

City of San Antonio, the court upheld an ordinance regulating navigation on

the San Antonio River. 21 S.W. 3d at 350. Acknowledging that this river is a

5 The quote attributed to Welder v. State on page 42 of Appellees’ Brief actually comes from
the Carrithers case, which does not cite to Welder, 196 S.W. 868 (Tex. Civ. App.—Austin
1917, writ ref’d). Although the quoted excerpt discusses the water belonging to the Texas
and United States governments, this sentence is immediately followed by “An individual
landowner is without power to convey such a right,” demonstrating that the juxtaposition
was between sovereigns and private entities, not cities.
                                            18
navigable stream which may be used and enjoyed by the public, the court

nevertheless held that the City has authority to regulate navigation on the

River to “prevent endangering the public and jeopardizing the River’s

distinctive and sedate character.” Id. Thus, the court upheld San Antonio’s

ordinance requiring vessels to obtain the city’s permission to operate on the

river. Id. at 351. Although that ordinance expressly restricted navigation on

and access to the waterway, the court upheld it as a proper exercise of the

city’s police power. The indisputably less restrictive Ordinances at issue here

should likewise be upheld as a valid exercise of the City’s police power.

   F. Texas Local Government Code § 551.002 provides further support
      that the Ordinances are a valid exercise of the City’s police power.

      To the extent that home-rule cities are limited in their power to regulate

navigable streams, state statute expressly grants the City authority to enact

the Ordinances here. Section 551.002 of the Local Government Code provides

that “a home-rule municipality may prohibit the pollution or degradation of

and may police a stream… that may constitute or recharge the source of water

supply of any municipality.” Evidence in the record shows that the Guadalupe

and Comal Rivers are part of the Middle Guadalupe River Watershed, which

constitutes and recharges the water supply of several municipalities. CR:936;

938. Thus, the City has authority to enact ordinances to decrease pollution


                                       19
and degradation of this resource. Appellees’ strained interpretation of §

551.002 is absurd. See Appellees’ Br. at 40. Appellees argue that, because

Texas Health and Safe Code § 361.0961 prohibits municipalities from

regulating the use of disposable containers, in enacting § 551.002, the

Legislature must have anticipated forms of pollution and policing a stream

other than litter. Id. As support, Appellees point to the Texas Litter Abatement

Act, which criminalizes littering in Texas rivers, and contend that if § 551.002

were to address litter it would be redundant with this Act. Id. But that is

simply not true. Section 551.002 does not make littering in rivers a crime; it

merely authorizes cities to take action to protect streams; thus the statutes do

not serve the same purpose and are not redundant. 6

       Moreover, if the legislature intended to exclude litter from the kind of

pollution a city could police under § 551.002, it could have made that

exception clear by defining “pollution” in the statute at issue. It did not. The

legislation does not address the fact pattern present here—there is nothing to

indicate that the legislature actually thought about the issue of too many

beverage containers in rivers running through municipalities. Thus, the


6Further, under Appellees’ interpretation of § 551.002—that it is intended for cities to
address water pollution other than litter—this provision may be redundant with Water
Code § 26.177, which provides that “a city may establish a water pollution control and
abatement program for the city,” and regulations adopted under this section address the
type of “non-litter pollution” that Appellees argue is the subject of § 551.002.
                                            20
Legislature did not express an “unmistakably clear” intent to preempt the

City’s power to enact ordinances designed to reduce pollution in rivers within

City limits. Rather, there is a reasonable construction giving effect to both the

state statute and the City’s ordinances, and the ordinances are not preempted.

See City of Houston v. Bates, 406 S.W. 3d at 546. This construction also gives

appropriate deference to the broad discretionary powers the Texas

Constitution grants to home-rule cities. See In re Sanchez, 81 S.W. 3d 794, 798

(Tex. 2002).

      In sum, the City has both the inherent home-rule authority to police

navigable streams in its boundaries and the water-protection powers granted

by the Local Government Code. Those powers support the public health and

safety Ordinances challenged in this case. Appellees cannot point to any

superior state law that displaces these ordinances with “unmistakable clarity.”

The unmistakably clarity in this case is found in the waters of the Comal River.

                                IV. CONCLUSION

      As a home-rule city, New Braunfels has the inherent authority to enact

reasonable regulations that promote the public welfare and are not contrary

to the constitution or laws of the State. The Ordinances bear a substantial

relationship to the public health, safety, and general welfare, and are thus a

reasonable exercise of the City’s authority. Appellees failed to carry their

                                       21
substantial burden of establishing that the Ordinances are invalid.

Accordingly, amici respectfully request that this Court reverse the decision of

the trial court and reinstate the Ordinances.

                                     Respectfully submitted,

                                     /s/ Bill Bunch_____
                                     Bill Bunch
                                     State Bar No. 03342520
                                     bill@sosalliance.org
                                     /s/ Kelly D. Davis____
                                     Kelly D. Davis
                                     State Bar No. 24069578
                                     kelly@sosalliance.org
                                     Save Our Springs Alliance
                                     905 W. Oltorf St., Ste. A
                                     Austin, Texas 78704
                                     T: (512) 477-2320
                                     F: (512) 477-6410

                                     Attorneys for Amici Curiae


                       CERTIFICATE OF COMPLIANCE

       This brief complies with the maximum length limit set forth in Tex. R.
App. P. 9.4(i)(2) because it contains 4,980 words, excluding the parts of the
brief exempted by Tex. R. App. P. 9.4(i)(1). The word count was computed by
Microsoft Word, which was used to prepare the document.

                                                 /s/Kelly D. Davis
                                                 Kelly D. Davis




                                       22
                          CERTIFICATE OF SERVICE

      I certify that, on March 3, 2015, a copy of the foregoing Brief of Amici
Curiae in Support of Appellant was served electronically via FileTime on the
following counsel of record:

Jim Ewbank
Cokinos, Bosien & Young
1210 Nueces St
Austin, TX 78701

Jonathan H. Hull
Reagan Burrus, PLLC
401 Main Plaza, Ste. 200
New Braunfels, TX 78130

Attorneys for Appellees

William M. McKamie
Adolfo Ruiz
McKamie Krueger LLP
941 Proton
San Antonio, TX 78258

Bradford E. Bullock
Knight & Partners
223 W. Anderson Lane, Ste. A-105
Austin, TX 78752

Attorneys for Appellant
                                                  /s/Kelly D. Davis
                                                  Kelly D. Davis




                                       23
                                 Exhibit A
Affidavit of Michael Mundell, Manager of the Solid Waste Division, Public
Works Department, City of New Braunfels

Originally attached to Defendant’s Response to Plaintiffs’ Motion for Entry of
Final Judgment, and for an Order that the Judgment Not Be Superseded by
Appeal, and for Attorney’s Fees (filed Feb. 7, 2014, Comal Cnty. District Court)
                                                    AFFIDAVIT OF MICHAEL MUNDELL

          STATE OF TEXAS

          COUNTY OF COMAL

                   My name is Michael "Mike" Mundell. I am over 21 years of age, of sound mind and
          capable of making this affidavit. I am currently the Manager for the Solid Waste Division of the
          Public Works Department for the City of New Braunfels and I am responsible for managing the
          solid waste division of the City's Public Works Department. I have been in my current position
          since August 20 I 0. l have personal knowledge of the facts stated herein, and they are true and
          correct.

                  As the Manager of the Solid Waste Division, I am responsible for overseeing the City of
          New Braunfels's efforts regarding the Comal River cleanup practices. As part of my
          responsibility, I am familiar with the amount of trash and litter that is collected and accounted for
          above the water in public areas alongside the Comal River and under the water in the Comal
          River. Since the enactment of the Disposal Container Ordinance which was effective January l,
          2012, the City has experienced a significant reduction in the amount of trash and litter that was
          collected and accounted for the years 2012 and 2013 in comparison to year 2011. The total
          estimated trash and litter for above and below water in the Comal River for 2011 is
          approximately 97 tons. The total estimate for trash and tiller for above and below water in the
          Comal River for 2012 was approximately 24 tons which was 75% less than the 2011 amount.
          The total estimate for trash and liter for above and below water in the Comal River for 2013 was
          approximately 34 tons which was 65% less than the 2011 amount.


                       Further affiant sayeth not.



                                                              1!:)£1~, ~              $/
                                                               Michael Mundell, Solid Waste Manager for
                                                               The City of New Braunfels, Texas


                       SWORN TO and SUBSCRIBED BEFORE ME on February 5, 2014.

                                                                            '

   ~\\\1111111,

 ~~;~~.Yrrtt;..,.
                   -          c. WILKE
                                             Ch; . .
                                                               NOTARY PUBLIC, In and For the State of Texas
~~· "'l\ft)
( l,
  1
   '11,
             !
           11'\'
                    Notary Publio, State of Texas
                     My Commission Expires
                         Augusl 06f 20 15
                             Exhibit B
Greg Bowen, Holiday Garbage up 438 Percent, NEW BRAUNFELS HERALD-ZEITUNG,
July 2, 2014
Holiday garbage up 438 percent - Herald-Zeitung Online: News   http://herald-zeitung.com/news/article_7f6e5010-0265-11e4-b116-001...




         Holiday garbage up 438 percent
         By Greg Bowen New Braunfels Herald-Zeitung | Posted: Wednesday, July 2, 2014 10:52 pm
         A report released Wednesday by the City of New Braunfels indicates that the amount of river litter
         left behind by tubers increased greatly this past Memorial Day Weekend when compared to the same
         weekends in the “can ban” summers of 2013 and 2012.
         River trash was up by 438 percent over 2013 and by 356 percent over 2012, according to figures
         from the city’s River Services Update.
         The can ban, or disposable container ban, was approved by New Braunfels City Council and by city
         voters following the “River Wild” summer of 2011. The anti-litter law prohibited tubers from carrying
         beer cans and other throw-away food and beverage containers on portions of the Comal and
         Guadalupe Rivers within the city limits.
         Following a lawsuit by local tubing and tourism firms, the prohibition was set aside in March by a
         judge who declared the can ban unconstitutional and ordered the city to stop enforcing it. The city is
         currently appealing the ruling to the Third Court of Appeals in Austin.
         The River Services Update — the latest report available on river litter collections — said the city’s
         contract scuba divers removed 242 pounds of river litter during this year’s Memorial Day Weekend,
         which unofficially kicked off the summer tubing season.
         That compares to just 45 pounds collected for the Memorial Day Weekend in 2013, the second
         summer of the can ban.
         That same weekend in 2012, the first summer of the can ban, 53 pounds of river trash were scuba’d
         up.
         Non-ban years compared
         The report also showed that while this year’s Memorial Day Weekend river trash haul was way
         above the litter totals experienced during the can ban years, it was nowhere near the trash haul seen
         in the pre-can ban summer of 2011.
         On the Memorial Day Weekend in 2011, according to the report, 1,421 pounds of river trash were
         collected — 487 percent more than seen during this year’s Memorial Day Weekend.
         That disparity may be attributable at least in part to the fact that Memorial Day Weekend 2014 was
         somewhat rainy while crowd-control measures had to be implemented during Memorial Day
         Weekend 2011, which kicked off the infamous “River Wild” summer during which tens of thousands
         of tubers descended on the city and there were drownings, hundreds of river-related arrests for such
         things as public intoxication, DUI, littering, marijuana possession, jumping from bridges and noise
         violations.
         “Perhaps weather and crowd-size comparisons between Memorial Day Weekend 2011 and 2014
         were a factor,” speculated Sheri Masterson, the city’s public information officer, who added that the
         “massive public education campaign mounted to bring attention to good stewardship of our natural
         resources over the past several years” may also have played a part.


1 of 1                                                                                                           12/3/2014 3:14 PM
                                Exhibit C
Asher Price, Researchers Find Carcinogen Dropoff in Lady Bird Lake Following
Ban, AUSTIN AMERICAN-STATESMAN, June 16, 2014
Researchers find carcinogen dropoff in Lady Bird Lake... | www.mystat...              http://www.mystatesman.com/news/news/researchers-find-carinogen-d...




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           Researchers find carcinogen dropoff in Lady Bird                                                                 Resize text

           Lake following ban
           Posted: 6:13 p.m. Monday, June 16, 2014


                        0                   0                0                      New


           By Asher Price - American-Statesman Staff




           A landmark 2006 prohibition of a type of pavement sealant ended an
           upward trend of a probable carcinogen in Lady Bird Lake, Austin-based
           federal scientists report.

           The findings, published Monday in the journal Environmental Science
           and Technology, offer a measure of vindication for those selfsame
           scientists — researchers with the U.S. Geological Survey — and Austin
           officials who long battled industry interests that had fought the ban.


                                                                     Scientists examined
                                                                     sediment collected for
                                                                     Lady Bird Lake in three                                              advertisement

                                                                     different decades and          In this Section
                                                                     found the probable             Video claims San Marcos city, police websites
                                                                     carcinogen, called             hacked

                                                                     polycyclic aromatic
                                                                                                                     Owner of world's biggest pit bull
                                                RODOLFO GONZALEZ
                                                                     hydrocarbons, or PAHs,                          works to overcome breed
                                                                     had declined by 58                              stereotypes
           U.S. Geological Survey’s Barbara Mahler and
           Peter Van Metre speak during a press conference           percent since the ban,
           held at Lou Neff Point on Lady ... Read More                                             Unlikely coalition pushes back against effort to
                                                                     reversing a 40-year
                                                                                                    scrap local bans
                                                                     upward trend.
                                                                                                    Chilly reception dooms Texas libel bill
           Lady Bird Lake was never dangerous for human recreation and remains
                                                                                                    Gun bill meets opposition in Texas Senate hearing
           below toxicity levels for aquatic life, the scientists and officials said




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Researchers find carcinogen dropoff in Lady Bird Lake... | www.mystat...       http://www.mystatesman.com/news/news/researchers-find-carinogen-d...


           Monday.                                                                          Bastrop sheriff: Arrest in Samantha Dean case likely
                                                                                            not soon

           But the upward trend had alarmed scientists and officials because it             Bastrop Co. sheriff: Arrest in Samantha Dean
           indicated, they said, that pockets of the city whose water drains into           shooting likely not soon

           the lake had experienced higher PAH levels.
                                                                                            Amplify Austin rescinds action that led to exit of
                                                                                            faith-based groups
           “The lake is our barometer,” said Barbara Mahler, a USGS researcher
           who co-authored the paper.                                                       Former Texas Land Commissioner Bob Armstrong
                                                                                            dies

           Mahler and her co-author, Peter Van Metre, have been writing about               Kent Finlay, music venue owner and songwriters’
           PAHs since 2000 — and the makers of sealants have been fighting any              mentor, dies at 77
           tie to their products for nearly as long.


           Sealants are used over asphalt in the construction of roads and parking
           lots to make them impervious to water and oxygen penetration.
           Coal-tar sealants, which do not absorb oil, often are used in gas
           stations and parking lots. Particles of the sealant can become dislodged
           in areas of heavy traffic and washed into waterways.

           The coal-tar sealants contain high levels of PAHs compared with the
           kind without coal tar.

           In 2003, Austin officials pointed to parking lot sealants as a likely
           source of the chemicals as the American-Statesman ran stories about
           pollution by the hydrocarbons in and around Barton Springs Pool.

           Researchers concluded that, on average, coal tar-based sealants
           accounted for half of all polycyclic aromatic hydrocarbons in the lake,
           while tailpipe emissions accounted for about one-quarter.

           In January 2006, the city became the first in the nation to ban the
           sealants. The following year, the ban survived a challenge from a maker
           of sealants at the state environmental agency.

           But in 2008, sealant companies formed the Pavement Coatings
           Technology Council to beat back expansion of the ban to other
           communities.

           In April, the trade association asked the EPA to end an endorsement of
           USGS findings, based largely on Mahler and Van Metre’s work, that the
           sealants are the largest source of PAHs in urban lakes and toxic to
           aquatic life.


           Mahler and Van Metre “have feelings of animosity toward industry,”
           said Anne LeHuray, executive director of the trade association. “We
           think they think they’re doing the righteous thing — they’re trying to
           science it up, but the science doesn’t hold water.”

           In response, Van Metre said: “We are scientists working for the U.S.
           Geological Survey. Our mission is to do unbiased work for decision-
           makers and the public. All the other research not funded by industry
           confirm that these products are a potent source of contamination.”




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Researchers find carcinogen dropoff in Lady Bird Lake... | www.mystat...         http://www.mystatesman.com/news/news/researchers-find-carinogen-d...



           Now roughly 16 million Americans live in communities that have
           banned coal-tar sealants, according to Tom Ennis, who runs the blog
           Coal Tar Free America. The states of Washington and Minnesota;
           Washington D.C.; a handful of cities and several counties around the
           country have some sort of ban, according to the blog.

           The USGS researchers said activities in waterways are safe because the
           hydrocarbons tend to settle into sediment at the bottom of waterways
           and are in such small concentrations as to pose little risk to human
           health.

           “Lady Bird Lake is safe to swim in, but it’s not safe to smear yourself in
           sediment,” Mayor Lee Leffingwell said. “It was on a trajectory for it to
           be unsafe. We reversed that trend.”

           Although hydrocarbons can cause tumors in fish, the fish metabolize
           the chemical so it doesn’t make its way up the food chain.

           “We’ve gotten push-back from industry,” U.S. Rep. Lloyd Doggett,
           D-Austin, said about his efforts to expand the Austin ban nationally. But
           the new findings “are the latest indication that the rest of the country
           should do something to solve this.”



           Major milestones in ban:

           2003: Following stories in the American-Statesman about pollution in
           and around Barton Springs Pool, city officials point to parking lot
           sealants as a likely source of the chemicals, called polycyclic aromatic
           hydrocarbons, or PAHs.


           2006: Starting Jan. 1, following investigations by Austin’s Watershed
           Protection Department and the U.S. Geological Survey, Austin bans
           coal-tar sealants.


           2007: Texas-based GemSeal Inc., a maker of pavement and tennis court
           sealants, tries and fails to get the Texas Commission on Environmental
           Quality to overturn the ban, which it said was based on faulty science.


           2010: A report by the Austin-based researchers found that coal
           tar-based pavement sealants are the largest source of PAHs found in
           urban waterways nationwide.


           2014: The researchers report that PAHs in Lady Bird Lake had declined
           by 58 percent since the ban.



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