The final act in a nearly two-year-long saga came to an end today, when a federal lawsuit brought by Mandan business Lonesome Dove against the city of Mandan was formally dismissed.
The issue was a mural painted on the business in 2018 which contained the business name in the artwork.
Mandan cited Lonesome Dove for painting the mural without a permit. But when the business applied for a permit, the city said no, arguing Mandan’s sign code specifically prohibited murals from conveying a commercial message — in this case, the inclusion of the words “Lonesome Dove” in the mural.
Lonesome Dove owners Brian Berube and August “Auggie” Kersten, along with the nonprofit constitutional rights law firm Institute for Justice, filed a federal lawsuit in May 2019, claiming the city was engaging in an unconstitutional restriction on free speech.
U.S. District Court Judge Daniel Hovland temporarily stopped Mandan from issuing thousands of dollars in fines against Lonesome Dove for keeping the mural in place until the lawsuit was resolved. But Hovland noted in his order, “Such a content-based restriction on speech as Mandan has enacted is unlikely to survive constitutional muster.”
In November 2019, Mandan enacted new laws allowing murals to display commercial messages and made it easier for residents and businesses to put up murals.
Mandan and the Lonesome Dove owners had been negotiating a resolution to the federal lawsuit, including, among other issues, the return of funds that Lonesome Dove expended in applying for a sign permit and going through Mandan’s permit process.
The actual terms of the agreement between the city and business are private, but they resulted in the dismissal of the lawsuit today.
In a news release, the Institute for Justice said, “Not only did their lawsuit save Lonesome Dove’s mural, it led Mandan to enact a new ordinance that lets residents and businesses put up their own murals throughout town. Today’s victory should be a warning to other municipalities that use their sign codes to play art critic. “
“We hope everyone can enjoy putting up murals without having to go through what we went through,” said August Kersten in a prepared statement.
Throughout the controversy, Mandan city attorney Malcolm Brown maintained the city’s stance wasn’t unconstitutional because the Lonesome Dove painting is a sign, not a mural and that it is within the city’s powers to regulate signs.