UPDATE: Restraining Order in Effect Pending Mural Hearing
UPDATE: A federal judge has issued a temporary restraining order to protect the Lonesome Dove mural.
KFGO reports Judge David Hovland has issued an order to the city of Mandan to stop – for now – with efforts to taken down the mural.
The order is in effect for two weeks. A hearing is scheduled for June 5.
One Mandan bar's ongoing battle with the city has led to a lawsuit. The Lonesome Dove nightclub has filed a federal lawsuit against the city of Mandan, stemming from demands from the city that the bar take down its mural painted on the front of the building.
On Monday the bar filed its lawsuit with the U.S. District of North Dakota. With the suit, the Lonesome Dove is seeking a temporary restraining order and preliminary injunction to allow the nightclub to keep the artwork.
Brian Berube and August Kersten, Lonesome Dove owners, began working with Erica Smith, an attorney with the Institute for Justice, after the City Commission ordered the mural be removed following a 4-1 on March 19.
Smith then sent the city two letters after beginning her work with the Lonesome Dove. One was sent on March 29, asking the city to allow the mural to remain, stating the forced removal was "unconstitutional." A second letter was sent a couple of weeks ago asking the city to extend the deadline for the mural's removal. Smith told the Bismarck Tribune that the city declined and said the bar could face fines up to $1,000 if the mural is not taken down by this Thursday, May 23.
"We gave the city ample opportunity to stop trampling on our clients' free speech rights and they refused," Smith told the Tribune.
In addition to keeping its mural, the bar's suit is looking for the coverage of legal fees and the payment of $1 for "nominal damages." Nominal damages are a common practice in cases where plaintiffs are suing for a wrongdoing that did not lead to a financial loss.
For more details on the mural battle, read up on the prior events below.
Originally published April 22, 2019:
Back in March we posted a blog about the city of Mandan telling the Lonesome Dove nightclub it needed to remove its western-themed mural painted on the side of the building. The Mandan City Commission said the bar had not submitted the proper paperwork for the display of outdoor artwork.
Today, the owners have said they are prepared for a legal fight. The night club is now working with the Institute for Justice, a Libertarian legal group.
Co-owner Brian Berube told KXNET that the Lonesome Dove owners didn't file the proper paperwork because they were unaware that they had to. While Berube hopes to avoid a lawsuit, but he said he and the rest of ownership refuses to paint over the art.
The bar, located on Memorial Highway, was first cited for the mural in October. The owners filed paperwork soon after, but the permits were denied by the city commission. The commission cited the city's mural code saying the mural failed to meet the requirements that "no wall sign or mural shall be painted on any building without prior approval from the [architectural commission]," and that no mural shall convey a "commercial" message.
The mural, shown above, depicts a western scene with the name of the bar at the top. The Lonesome Dove is a western-themed bar.
The owners were advised by the commission to apply for a sign permit, since they deemed the mural a commercial message. They then shot down the bar's sign permit application in December.
This seems like an awful lot of fuss for some artwork that appears to have made an honest mistake with some paperwork. You've got to wonder if there are better and more important issues for the city of Mandan to be spending its time on.