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The large mural painted on the door wind block at the entrance to Lonesome Dove on "The Strip" in Mandan is an unpermitted mural under the Mandan city's ordinance. Mike McCleary / Bismarck Tribune

Judge grants temporary restraining order in Mandan bar mural case

MANDAN — A federal judge has granted a motion for a temporary restraining order to protect a mural outside a bar in Mandan.

U.S. District Court Judge Daniel Hovland granted the temporary restraining order two days after the owners of Lonesome Dove filed a lawsuit against the city of Mandan over a mural city officials ordered removed.

In October, Lonesome Dove owners Brian Berube and August "Augie" Kersten were cited for having an unpermitted, Western-themed mural on the outside of the bar.

Berube and Kersten were unaware of the permit, later applied and were denied because city ordinance states "no mural may be placed on the front of the building" and "no mural shall convey a commercial message."

On Monday, Berube and Kersten, along with their attorney Erica Smith, of the Institute for Justice, filed a lawsuit against the city seeking a temporary restraining order and preliminary injunction to allow the mural to stay.

In Hovland's order on Wednesday, May 22, he said "at least portions of Mandan's prohibition on commercial murals are clearly not content neutral."

"Such a content-based restriction on speech as Mandan has enacted is unlikely to survive constitutional muster," Hovland wrote.

Smith said the city's ordinance is "unconstitutional," and that Berube and Kersten were told they had until Thursday to remove it or could be fined up to $1,000.

"We are very pleased that the court sided with the First Amendment and granted an injunction protecting the mural," Smith said in an email Wednesday. "Augie and Brian can sleep well tonight knowing they no longer have to decide between removing their mural or paying thousands of dollars in fines."

Berube said Wednesday he's also pleased, adding that the temporary restraining order "will give us time to look at the whole picture now."

"We were running up against the time clock," he said. "That was the first step that we had to get accomplished."

Hovland also ordered a "mandatory settlement conference," which has been scheduled for June 4.

On Tuesday, Mandan city attorney Malcolm Brown said the city will file "an appropriate response" to the lawsuit, and did not respond to a request for further comment.