‘You can’t put water back upstream’

ACR eminent domain threats bring forth the conflicts behind a project delayed nearly 10 years

Five Hyattville area ranchers have received their final offers for Alkali Creek Reservoir easements from the Nowood Watershed Improvement District, with limited time to accept before the district will, “reluctantly initiate eminent domain proceedings,” according to a notice of final offer shared with the Standard. 

At the regular NWID board meeting Monday night in Manderson’s fire hall, it was relayed that the notices were picked up as certified mail between September 18-24. NWID gave a 15-day deadline to landowners receiving the notices, making October 8 the earliest date the board would consider letters of resolution. 

“We thought we could delay it, so I picked mine up a week later than anybody else,” said Tom Shirran, one of the landowners who has declined to grant an easement for the ACR project.  

“We have asked (NWID) for an extension, but one (landowner), they were denied an extension... I haven’t got a report back on that,” Shirran said. 

As of Monday night, none of the landowners threatened with eminent domain had signed the agreements.  

The board decided a special meeting would be scheduled on or after October 8 to continue with eminent domain proceedings as needed and craft a resolution to charge for public records following a whopping $3,250 bill from the district’s secretary, Justine Paxton, who put in an extra 35 hours on public records requests recently. 

THE CONFLICT

“I’m of the opinion that the reason we’re butting heads is we’ve lost our public trust with this entire project,” Tim Gardiner, a downstream landowner and critic of the ACR project, said during public comment on Monday. 

Gardiner has brought up several conflicts of interest with the NWID board, including the fact that all five board members; Martin Mercer, John Joyce, Mitch Vigil, Terri O’Donnell and Sheri Mascaro; own shares in the project. Paint Rock Angus, Mercer’s ranch, owns 1,500 shares, and Vigil’s farm owns 1,250. The pair are two of the larger shareholders, with only 6,000 total shares in the project, according to a 2025-26 shares assessment shared with the Standard. 

“To me, that signifies a pretty significant financial stake. What it tells me is that the board as a whole has an incentive to basically make sure this dam works, because if the dam is not built, their shares are rendered worthless. If the dam is built, their shares increase in value exponentially,” Gardiner said. 

Mercer has already received approximately $1.6 million for land purchased for the reservoir, to receive another roughly $1.2 million if the project goes through. Gardiner also took issue with NWID leasing Mercer the property purchased from Paint Rock Angus without exploring other options. NWID minutes show Mercer has abstained from the vote for Paint Rock Angus land purchases and easements.

During public comment, Shirran accused Vigil of offering another landowner $1 million for an easement. 

“I don’t know what we might have said...,” Vigil replied. “Why would I offer a million bucks? Have I offered you anything?... It’s pretty valuable for this community. I’d feel pretty good if I could get it done.”

In the past, landowners asked for easements have stated they are not being offered enough for their property. An easement option agreement from NWID presented to the Standard valued irrigated crop land at $8,065 per acre, irrigated or sub-irrigated pasture at $3,079 per acre and rangeland at $1,210 per acre; all based on 2021 appraisal values. The proposal states an updated appraisal and compensation would be procured upon advancement of the project to construction.   

Another point of contention is the reservoir’s location. The landowners who have not signed easement option agreements are above the ACR site and would be unable to utilize it. 

“You can’t put water back upstream,” Shirran said. 

Wyoming Water Development Office Director Jason Mead stated that there is potential for exchanges if junior direct flow water right holders above the reservoir have shares in the reservoir. “Instead of being regulated off their direct flow right by a downstream senior right, they may be able to release water from the reservoir to satisfy the senior right and in return continue to divert their junior right from the creek, if water is present,” he wrote in a statement to the Standard. 

Shirran has countered that idea, noting that some irrigators with access to reservoir water still run pivots out of the creek above the reservoir, which would not change. On top of that, “There’s no water in the creek,” with the entire state of Wyoming experiencing an ongoing drought. 

Last year, the Wyoming Water Development Office met with landowners and tentatively offered pivots and a ditch-to-pipe approach for Anita Ditch to move along negotiations. 

“Center pivots were originally discussed between individual legislators and landowners from which easements were still needed to move the project forward,” WWDO director Jason Mead wrote in a statement to the Standard. “After a thorough legal analysis, it was determined center pivots could not reasonably be tied to the legislative authorization for the project, and even if they were, the use of state funding in this manner is prohibited by the Wyoming Constitution because it results in the conferral of a grossly disproportionate private benefit.”

On top of concerns about the financial and practical fairness of the project, residents have alleged reservoir negotiations have torn apart their community. 

Shirran told the Standard he was informed, “if I didn’t give an easement, (they’ll) just file eminent domain. Well, them were the wrong words to say.”

“Martin (Mercer), he just keeps harassing people, and that’s not what you do when you want an easement. When you want an easement, you better be kissing somebody’s butt.”

TICKING CLOCK

ACR was first pitched in 2008, with NWID formed as its sponsor in 2015. It was priced at $35 million in 2017, last estimated around $80 million in 2025. The state has thus far only allocated $59 million for the project. Roughly 33 irrigators will benefit from the reservoir. 

The legislature attempted to cut funding in 2025, then restored it. The 2026 Omnibus Water Bill states that ACR will be given no further time extensions. Beginning January 1, funds from the state may not be used to exercise eminent domain for the project. The overall reversion date is July 1. 

“It appears that the landowners aren’t signing the easements in order to stall the process until funding that has been put forward by the state of Wyoming is pulled from the project,” Mercer said. 

Mead explained that should the project fail, the state will decide what to do with land already purchased at that time. An additional $3.3 million has been put into permitting and partial design for ACR, which is not recoverable. 

  “I believe ACR will come to fruition,” Mercer said. “If you look at how water rights lay in the drainage and where the shortages have been documented by the state engineer’s office, it offers a real solution.”

Should landowners refuse their option agreements and eminent domain be asserted, the process could be dragged through court. NWID would be tasked with proving that public interest and necessity require the project, the project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury, and the property sought to be acquired is necessary for the project.

OTHER OPTIONS

“There are future water storage project sites that have been researched and could be applied for if the Wyoming Water Development Committee sees fit,” Mercer said when asked if NWID would continue to pursue water storage should ACR fail. 

Mead reported around 40 sites in the Nowood watershed were explored for the project. 

“Analysis included available water to store, lands that could benefit, land ownership, environmental impacts, technical feasibility, etc.,” he wrote. “ Usually, one or more of these factors contributed to a site being more or less viable in regard to availability, effectiveness in reducing irrigation shortages, permitabiliy, and/or constructability.”

Shirran suggested smaller reservoirs be placed upstream along the Nowood River. 

“I want water storage. I’m not against water storage at all. But it’s got to be a place where everybody can use it,” Shirran said. 

Mead said that projects through the Water Development Program are sponsor-driven and would have to be reviewed and approved by the WWDC, the Select Water Committee, and the legislature.

“Ultimately, the sponsor or district is the entity responsible for acquiring the easements or fee titles necessary to construct the project.  How to proceed forward with the project and acquisitions, should landowners decide not to accept the final offers provided to them by the district, is a decision by the district,” Mead said. 

THE ELECTION

 Meanwhile, Mercer, Vigil, and John Joyce’s seats on the NWID board have come up for election. All three have filed for re-election, joined by new candidates Shirran, Douglas Hamilton and Todd Jones. Ballots will be mailed out to property owners and registered voters within NWID boundaries between October 8-18, with the count to be conducted for the November 3 general election. 

Monday night, the NWID board formed a five-member ACR board, which will fall under NWID purview, to oversee assessments for the reservoir. The NWID board appointed themselves as the interim ACR board members. NWID voters will also have a say in those positions with the upcoming election. 

“We discussed in the beginning of this process, back when we were setting up a service improvement district or watershed improvement district, that the shareholders in the reservoir were going to pay for it, and they were going to be the ones managing it, and they were going to be the ones that they had to assess themselves for the payments, the expenses incurred by the reservoir,” Joyce said. “I think we’re getting close to final design and construction, and it probably would be important to get these this in place going forward.”