BROOKINGS — Actor Kevin Costner wants to have his cake and eat it, too.
That’s essentially an argument Sioux Falls lawyer Andy Damgaard made to the South Dakota Supreme Court earlier this week. Damgaard represents South Dakota artist Peggy Detmers, who brought a suit against Costner after the actor sought a buyer for a Black Hills tourist attraction that houses a group of sculptures Detmers created.
It’s the second go-round in court between the “Yellowstone” star and Detmers. In the first round, Costner won after the Supreme Court in 2012 ruled that Detmers agreed to the permanent placement of her work at the attraction owned by Costner.
The second round was triggered when Costner listed the land and indicated that he would be moving the bronze sculptures to a different location without the consent of Detmers.
Damgaard told the court that Costner should have to live with the result of the first opinion, which Costner wanted.
“She’s lived with that for a number of years, but now he has to live with that,” Damgaard said.
Dispute between artist, Kevin Costner dates back to ’90s
The dispute has its roots in the early 1990s with Costner’s desire to build a casino and resort near Deadwood – themed on his hit movie “Dances with Wolves.” He commissioned Detmers to create a bronze display for the resort, known as the Dunbar. Over the course of six years, Detmers created a display that consisted of 14 bigger-than-life buffalo and three mounted Lakota warriors. It’s the third-largest free standing bronze display in the world.
In the late 1990s, when construction on the Dunbar had not started, Detmers stopped work on the sculptures. After several months of negotiation, she signed a contract with Costner that provided her additional compensation and royalty rights for reproductions. It also provided that if the Dunbar were not under construction within three years, they would agree to a suitable site where the sculptures could be displayed publicly.
When construction on the Dunbar didn’t start, Costner and Detmers agreed to place the sculptures on land owned by Costner that had been set aside for the development. Known as Tatanka, the site included the sculptures, a visitor center, café and nature walks.
Detmers filed suit in 2008 after the Dunbar was never built. She lost her legal challenge after a circuit court judge ruled that Costner and Detmers had an implied contract that the sculptures would be permanently displayed at Tatanka unless they agreed on another site.
South Dakota artist doesn’t want sculptures moved
But when Costner listed the land for sale with a notice that the sculptures would be relocated, Detmers hadn’t agreed.
“He’s unequivocally said he’s going to move them,” Damgaard told the justices.
Stacy Hegge, a lawyer representing Costner, argued the case should be decided in the actor’s favor based on a legal doctrine that a case can’t be re-litigated. Hegge said Detmers’ second lawsuit is based on the same issues and parties as the first case.
Hegge also said that Detmers “won’t agree to any other placement.” And she said Costner, who spent $6 million developing Tatanka, and his heirs aren’t obligated to display the statues forever.
“That would be an absurd result,” she said.
South Dakota State University hosted the Court for its March term. A decision in the case will come at a later date.