Jack L. August Jr. is executive director of the Barry Goldwater Center for the Southwest and Visiting Scholar in Legal History at Snell & Wilmer. He is the former executive director at the Arizona Historical Foundation at Arizona State University, where he teaches graduate courses in water policy and management. He is a former Fulbright Scholar and National Endowment for the Humanities Research Fellow. A Pulitzer Prize nominee, Dr. August has written books and articles on twentieth-century western political and environmental history, including Vision in the Desert: Carl Hayden and Hydropolitics in the American Southwest (TCU Press, 1999) and Senator Dennis Deconcini: From the Center of the Aisle (University of Arizona Press, 2006).

Dividing Western Waters

Mark Wilmer and Arizona v California

By Jack L. August Jr.

TCU Press

Copyright © 2007 Jack L. August, Jr.
All rights reserved.
ISBN: 978-0-87565-354-9

Contents

Foreword,
Acknowledgments,
Introduction,
Chapter One: Midwest to Southwest,
Chapter Two: The Firm and the River,
Chapter Three: A Question of Relevance,
Chapter Four: Arizona Adrift,
Chapter Five: Arizona v California,
Chapter Six: Enter Mark Wilmer,
Chapter Seven: A Brave New Water World: Law, Politics, and CAP,
Chapter Eight: That Lawyer from Arizona,
Appendices,
Notes,
Selected Bibliography,
Index,

CHAPTER 1

Midwest to Southwest

Today, like a century ago, rolling green fields of corn, hay, dairy cows, and grain frame the small town of East Troy, Wisconsin, tucked sixty miles inland from Lake Michigan near the southeastern corner of the state. With a population approaching 4,000, East Troy and its environs form a pastoral community where its largely German and Irish pioneers have left a cultural imprint that residents embrace and protect. The past and present mix easily; median income, housing values, and education statistics stand far above state and national averages. Crime is virtually non-existent, and locals consider their quality of life idyllic. "East Troy," says one lifelong resident, is a town of "integrity, patriotism, and industriousness." In a place where winters last forever and summers can be sultry, wildlife and humans have achieved an enviable balance with nature. With little pretentiousness or effort, East Troy, Wisconsin, recalls a pre-industrial society that reflects, in many ways, the American agrarian ideal.

On July 18, 1903, Mark Bernard Wilmer, whose professional career would shape the arid American Southwest and its legal, political, and economic history, was—somewhat paradoxically—born into this verdant community of farmers, dairymen, and small town merchants. In 1904, his parents, John Bernard Wilmer and Elizabeth Johnston Wilmer, purchased the "Stetson Place," that served both as a dairy and a farm, seven miles east of East Troy, in the hamlet of Honey Creek, which, Mark recalled in later years, "had a population of just over 300 souls." Thus, his earliest years were spent on the family farm, "one of the better dairy farms in Honey Creek," where his father grew corn, hay, grain, and a variety of other crops as well as maintaining a good-sized dairy of between forty and fifty cows. "It was mostly a farming operation," he remembered, "with my father growing as much of the feed as he could for the animals," which included pigs and sheep along with the dairy cows. The enterprise produced a good living for John Wilmer's family.

Young Mark, the sixth of seven children, attended Honey Creek public schools—actually a two-room school—until third grade. Then his Catholic family, under the prodding of their parish priest, required that Mark attend parochial school. They went to church in Waterford, about six miles northeast of Honey Creek, and Mark was supposed to attend school there. The family traveled to church each Sunday by horse and buggy, which, once a week, posed no problems for the family; in fact, the Sunday outings became a welcome respite from the daily drudgery of the farm. But for Mark to attend parochial school in Waterford every day, his father would have to hitch up a horse and drive him to Waterford, which was not practical. They had to find another way.

About seven miles southeast of Honey Creek, in Burlington, was another Catholic church and school. The priest at Waterford said that Mark could be excused from attending school there if he went to the parochial school in Burlington, which sat midway on a train route that passed within a half-mile of the Wilmer farm. The daily run between Waukesha to Chicago held the key to Mark's early parochial education. The "milk train," carrying dairy products to Chicago from Wisconsin's farms, left Waukesha in the morning and stopped a short walk from the farm at 7:30 A.M. It returned in the late afternoon around 4:30 P.M. Besides dairy products, it carried passengers, and an eight-minute ride to the Catholic school in Burlington would only cost 10 cents. For two years Mark woke up in the morning, walked to the tracks, caught the train and returned home at night. He thought Burlington was a "good-sized" town; the education he received there held him in good stead. With his two-year stint at Catholic school complete, Mark's family reenrolled him in the public schools in Honey Creek.

Though he liked school Mark was an average student. He admired and respected his father and his work ethic, but he knew at an early age that he preferred something other than life on the farm. As he progressed through grammar school, Mark combined book learning with a daily routine of dairy and farm duties—taking care of livestock, milking dairy cows, and stacking hay. He enjoyed fishing the many streams and lakes and took this boyhood passion for the outdoors into his adult years. Also, according to his daughter, Elizabeth Wilmer Sexson, he read constantly; "He would hide in the barn so he could read." He attended public high school in Burlington, riding the same trains he did when he was in parochial school. He graduated in 1922, describing himself as "not an outstanding student," and knew other vocations beckoned. Upon graduation he left home, choosing not to work on the farm. He searched for employment beyond the confines of Honey Creek and, not surprisingly, the years of daily trips to Burlington exposed him to a more fast-paced, comparatively urban lifestyle. The distinguishing characteristics of a new America could be foreseen—urbanized, centralized, industrialized, and secularized. The teenaged Wilmer adapted to this changing civilization in seamless fashion. He found work close to home, in Burlington, driving a truck for an ice cream company. After a year there he moved to the emerging metropolis of Milwaukee, where he continued working, first for another ice cream company and then for a tool manufacturer.

Throughout his childhood and teen years, Mark's parents, especially his father, emphasized the benefits of formal education beyond high school. And while working in Milwaukee, he visited the campus of Marquette University, a Jesuit school founded in 1881 that seemed a natural extension of Mark's earlier parochial education. In the fall of 1924 he began course work, where his less-than-stellar academic performance suggested that he might pursue goals outside the realm of academia or the professions. At Marquette, however, Mark grew interested in law, though the reasons for this interest remained murky throughout his life. As he put it in 1994, shortly before his death, "I had a brother who was a little older who went to law school. While I was at Marquette I decided to become a lawyer. Why? I don't know. I'm quite sure though that I did evidence some considerable interest in law and that sort of thing for some reason. I don't know what it was." The influence of an older brother or the fact that he was inescapably drawn to the law, Wilmer, by age twenty, appeared to have decided upon a career path.

He began with a pre-law curriculum: history, philosophy, and as comparatively new field, political science. At Marquette he first learned to appreciate the classics, poetry, and mystery novels. After two years of effort the academic horizon looked less than promising. "I was not an outstanding student in those days," the way he used to describe...