The city of Mandan is not accepting any new mural permit applications or enforcing its mural regulations until a federal lawsuit has concluded or city officials approve a new ordinance.

Lonesome Dove owners Brian Berube and August Kersten filed a lawsuit in May over a Western-themed mural outside their bar that the city ordered removed, stating the city's enforcement stifles free speech.

U.S. District Judge Daniel Hovland issued an order to protect the mural until a preliminary injunction hearing, which was canceled earlier this month after both parties met and agreed to continue settlement negotiations.

The city has agreed to not enforce its mural guidelines against the Lonesome Dove "and others" for the duration of the lawsuit, or once the city approves a "constitutionally sound" ordinance, U.S. Magistrate Judge Clare Hochhalter wrote in his July 11 order.

City Planner John Van Dyke said the city also will not accept any mural permit applications until the lawsuit is completed or until the city decides to pass a new ordinance, which would not occur before fall.

Van Dyke declined to answer questions about the city not enforcing its mural regulations or working on a new ordinance, citing ongoing litigation.

"The city has recently filed its answer and jury demand in federal court in which it denies plaintiffs’ lawsuit claims of constitutional violations and preserves all of its legal defenses to those claims," Van Dyke said in an email.

An attorney with the Institute for Justice who is representing Berube and Kersten said the judge's order allows people to freely put up murals.

"The right to put up a mural is the right to free speech; it's protected by the Constitution, and the government doesn't get to play art critic," attorney Robert Frommer said.

The city commission in January agreed to impose a mural moratorium while the city works to draft a new ordinance. The moratorium was in effect for six months, but it appears the ban now continues due to the Lonesome Dove lawsuit.

Erica Smith, of the Institute for Justice, said she was pleased to hear the judge's order protects not only Lonesome Dove's mural, but other businesses as well.

"We're hoping that the city will enact mural regulations that allow everyone in the city to speak freely," she said.

Many Visions Apparel at 100 Second Ave. NW was ordered to remove its mural in February because the mural didn't comply with city ordinance and is on the front of the store.

Store owner Bobby Cochran said he didn't know the city wasn't enforcing its mural regulations because of the Lonesome Dove lawsuit and had "stopped worrying" about city enforcement.

Cochran was given a date to remove the mural but received an extension due to cold weather. He said he hasn't heard anything from the city since and doesn't plan to take the mural down.

"It honestly made me want to move out of town completely," said Cochran, whose store has been in Mandan for a little more than a year.

If he's ordered to remove the mural again, Cochran said, he'll hire an attorney.

While Cochran and the owners of Lonesome Dove argue that the city's ordinance is unconstitutional, artist Melissa Gordon said she believes it maintains a purpose.

"I think (Mandan) encourages art. It's just, if you don't have rules and ordinances in place, people are going to start pushing the boundaries," said Gordon, who has been asked by the city for her input on proposed ordinance changes.

Gordon has painted nine murals in the Mandan area, both indoors and outdoors, including at Mary Stark Elementary School, Bearscat Bakehouse and the tornado shelters at Harmon Lake.

She said artists "need to be responsible" and aware of what mural regulations exist in the cities in which they work.

Gordon said she's disappointed the owners of Lonesome Dove and the city weren't able to compromise prior to going to court. She has a couple of projects planned in Mandan, but they've been put on hold because of the lawsuit.

"It's frustrating," she said, adding that murals potentially won't be allowed in the city until the fall, when it's too cold to paint.

The Lonesome Dove case is set to go to trial in 2021.

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(Reach Blair Emerson at 701-250-8251 or Blair.Emerson@bismarcktribune.com)


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