Historian, Fulbright scholar, and native Arizonan, JACK L. AUGUST, JR., is director of the Arizona Historical Foundation and has served as a professor of history at Arizona State University and Prescott College. August has published extensively on the American West.

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 himself earlier in life, and at the end of his second year at Marquette he, like other students, submitted to an academic review conducted by the dean, Father Fox. Fox asked Wilmer what he was going to do. “I’m going on to law school,” Mark replied. Fox responded, “I wouldn’t recommend that.” He continued that he thought Mark should continue in liberal arts and study Greek, Latin, and trigonometry. The dean pronounced that Mark should take “something that you will have to study to learn because up to the present time you’ve been getting by on nothing but bluff.” Wilmer, who had his sights set on Marquette’s law school, demonstrated a large degree of restraint, said, “Fine, Father,” and left the interview. Wilmer ignored the priest’s admonition and applied to Georgetown College of Law in Washington, D.C., where he was accepted. At the time Georgetown was looking for students rather than the reverse.

Between 1926 and 1929 Wilmer attended Georgetown law school. Tuition and books amounted to about $300 per semester, so in order to help pay for his legal education Mark returned to Honey Creek in the summers to work with his father on what had become a very successful dairy farm. Also, the family provided further financial assistance. At Georgetown, Mark sharpened his analytical skills and learned to study. He performed at a high level of proficiency in his course work and impressed his professors with his breadth of knowledge, resolve, and writing abilities. As he approached graduation, Mark had no fixed agenda; he seemed preoccupied with the task at hand and that was course work. As he recalled, “I don’t think I had any real plans as to what I was going to do. I didn’t look that far ahead.”

He became well-acquainted with a night school law student from Massachusetts, James Farrell, who lived in the same fraternity house and who had graduated from Georgetown a year earlier. They discussed practicing law together, and, musing about the future, they kept returning to the suggestions of an elderly Department of Justice lawyer from Texas who urged them to head west. They focused their attentions on San Angelo, Texas, and Phoenix, Arizona. Their senior acquaintance said, “They’re both coming cities but Phoenix is hotter than hell.” He added, “The thing with Phoenix is that it’s a place where you have a choice between there and hell, and you’ll probably pick hell instead of Phoenix.” In spite of that drawback, he told the two newly minted attorneys, “You know that’s [Phoenix is] the place for a young man.” Nevertheless they decided to head to Texas first, and shortly after law school graduation ceremonies on June 9, 1929, Farrell and Wilmer, in a “seventeenth-hand hand used Buick,” set forth across the country on roads that challenged the hardiest traveler. Ultimately, they made it to Texas.

Meanwhile, the two intrepid young attorneys had filed with the Texas Secretary of State copies of their diplomas from Georgetown along with three letters of recommendation from faculty and lawyers. At the time Texas had a diploma privilege for Georgetown graduates, and Wilmer and Farrell, after signing documents before a notary public, received their certificates of admission to the Texas State Bar.

In the overstuffed Buick, they visited Harlingen, Corpus Christi, and San Antonio, places that had entered into their discussions concerning establishing a law practice. After considering these three cities, they headed to the Texas Panhandle. Still not satisfied, they turned southwest. After weeks of driving, surveying, polite introductions, and speculation, they decided, in October 1929, to establish a practice in the heart of west Texas, in San Angelo, the seat of Tom Green County. In a few weeks the stock market crash and the subsequent economic depression that settled upon the country for a decade or more set the tone for what turned out to be a challenging period for the short-lived partnership of Wilmer and Farrell.

While the two struggled to gain a foothold in the San Angelo market in the context of a sharply declining economy, a lawyer from Fort Stockton—located 150 miles to the southwest—happened into their office. Noticing that the practice was less than brisk, the visiting attorney suggested, “Why don’t one of you guys go to Iraan,” an oil boomtown southeast of Fort Stockton. “There will be some business there,” with all of the people seeking work moving to the area which, at the time of its discovery, was considered the world’s largest shallow oil field. Based upon this advice, Wilmer, in the spring of 1930, opened up a satellite office in Iraan, Texas.

The Iraan experience not only proved a critical juncture in Wilmer’s fledgling career, but also, inadvertently, led him to Phoenix, Arizona. He began practice in modest and deliberate fashion. He recalled “getting his meals from divorces and things like that,” and, in serendipitous fashion, he met the manager of the boarding house run for the Illinois Pipe Line employees, a Mrs. O’Brien. Her son, Austin, whom Wilmer had befriended at Georgetown, had recently graduated and established a law practice in Phoenix. Wilmer enjoyed receiving a free home-cooked meal from Mrs. O’Brien from time to time, and he learned that another law school classmate, James A. “Jim” Walsh, who graduated a year before in the class of 1928, had also headed to Phoenix with Austin O’Brien. Wilmer held O’Brien and Walsh in high regard and hoped to visit them in the near future.

In January 1931, Mrs. O’Brien called Mark and said that she wanted to travel to Phoenix to visit Austin and her new daughter-in-law, Sarah. She had a dependable car and asked if Mark could ride along. Not overly busy in Iraan, Mark took her up on the offer. Perhaps, he thought, Phoenix was a new horizon.

The Southwest’s desert metropolis shows its best side in the winter, and to the twenty-seven-year-old attorney the weather and striking vistas contrasted sharply with what he had known in Wisconsin, Washington, D.C., or central Texas. As he stated in 1994, “I liked the place and I stayed.” Actually, he visited Walsh, who practiced in a Mesa-based firm headed by Michael Joseph Grattan Dougherty, an established lawyer with a sterling reputation. Mark heard from Walsh that Dougherty had just learned that one of his clients, the Roosevelt Water Conservation District, was having bond problems and friction with the Salt River Project. Walsh told him that Dougherty might need to hire another lawyer. Mark, enjoying his first few days in Arizona, listened with rapt attention.

Wilmer took the initiative. He scheduled an appointment with Dougherty and learned that he too hailed from Wisconsin. The two established a speedy rapport—Wilmer left the office with the promise of a job as long as he passed the bar exam. Before he departed Arizona he registered with the Arizona State Bar, established a residence with Austin O’Brien, and prepared for the move. He headed back to Texas, closed the office in Iraan, told Jim Farrell goodbye, and returned to Arizona. He took and passed the Arizona bar exam in May of 1931.

Even before the results of the bar exam were announced, Wilmer began working for Dougherty. He and Walsh served as associates, with Mark’s salary at $25 per month. As Wilmer worked on Roosevelt Water Conservation District legal issues in 1931, he could scarcely know that water, his first professional legal charge in Arizona, would become a defining element in his legal career. Moreover, these first hours of work—on bonds for water resource development infrastructure and relations with the Salt River Project—were a small part of a much larger complex of regional water rights issues that, twenty-five years hence, would consume him for several years and place him at the center of the legal, political, and environmental history of the twentieth-century American West.

At the outset of his legal career in his adopted state, Wilmer heard of Arizona’s already long and tempestuous relationship with California and other Colorado River basin states over the use and distribution of Colorado River water. He also maintained a work ethic that would serve him well: he read everything and knew, as one of his longtime colleagues, Edward “Bud” Jacobson recounted much later, “the front, back, and middle of everything.” He was neither impetuous nor impulsive in how he conducted his work, but rather studious, thorough, and systematic. His work day extended into the evening hours, when he would read law, history, and anything else that added to his intellectual warehousing.

Just prior to his arrival at Dougherty’s firm, the State of Arizona, on October 13, 1930, instituted an action—the first of many—against the secretary of interior and the States of California, Colorado, Nevada, New Mexico, Utah, and Wyoming to enjoin construction of Hoover Dam and the All-American Canal as well as to enjoin performance of contracts for the delivery of stored water at the dam. In effect, Arizona attempted to stand in the way of the construction of what became Hoover Dam and the All American Canal that diverted water from the Colorado River to the Imperial Valley.

In addition, this bill of complaint sought to have the Boulder Canyon Project Act of 1928 and the Colorado River Compact of 1922 declared unconstitutional. The case and the public policy issues surrounding it were rooted in the colonization and settlement of the arid Southwest. Moreover, at first blush, recent history suggested that California was unified in its approach to Colorado River development while Arizona was confused, misguided, and embroiled in an internecine struggle marked by no small amount of political posturing and intrigue.

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