Dividing Western Waters: Mark Wilmer and Arizona v. California

Chapter Four: Arizona Adrift

Just three weeks after President Coolidge signed the Boulder Canyon Project Act bill into law, on January 15, 1929, Arizona’s Colorado River Commission authorized Attorney General K. Berry Peterson to file suit in the U.S. Supreme Court. On October 30, 1930, the State of Arizona formally submitted its petition. As noted earlier, Arizona contended that the Colorado River Compact, the Boulder Canyon Project Act, and the water and power contracts were unconstitutional. Strangely, Arizona looked outside the state for legal expertise and hired Idaho attorney John Pinkham Gray, reputedly “one of the outstanding lawyers in the West,” to assist its stable of attorneys. Attorney Gray avowed, “California and the federal government were not going to override roughshod Arizona sovereign rights.” The state’s rights approach proved legally anemic: on May 13, 1931, the Court rejected Arizona’s suit 8–1 without prejudice, asserting that the Boulder Canyon Project Act “represented a valid exercise of congressional power.” The Court, per Justice Louis Brandeis, held, inter alia, that the compact and the project act were constitutional, that the river was a navigable stream and that the secretary could construct the dam authorized by Section 1 of the project act.1 One month later, physical proof of that power became evident as workers began excavating diversion tunnels for the dam at Black Canyon, which, after much congressional wrangling, would be called “Hoover Dam.”2 As suggested at the outset, for the first three decades of the twentieth century, Mark Wilmer and the Colorado River controversy in the American Southwest lived parallel, yet separate, lives. Inexorably, at mid-course, they would find each other. Wilmer’s arrival in the Grand Canyon State in the spring of 1931 coincided precisely with the end of the first chapter of the titanic struggle among seven states and Mexico for rights to the lifeblood of the region. Later, as Wilmer familiarized himself with the legal issues Chapter Four ARIZONA ADRIFT surrounding Arizona’s first Supreme Court filing, particularly the interpretation of the Colorado River Compact of 1922 and the Boulder Canyon Project Act of 1928, he realized that little had changed over the next twentyone years, when, in 1952, the Supreme Court commenced its final disposition of the case. As Wilmer read the ruling of Arizona v California (1931) he realized that Arizona had no consistent statewide water policy, its political leadership was divided, and that California, in its inherent complexity, had nevertheless proceeded in a unified fashion concerning her claims to the river. Prior to his arrival in the Grand Canyon State the two-decade controversy between Arizona and California had heated to feverish intensity. The national press covered the struggle for the Colorado on a regular basis and, though new to Arizona, he undoubtedly followed the story with interest. For the next stage of his legal career in Arizona, Wilmer developed his skills as a competent, even outstanding, litigator, which would, by mid-career, stand him first among his peers in the courtroom. What confounded him and countless other Arizona citizens over the next phase of the controversy was how state leaders fumbled away a host of opportunities to enter the Colorado River sweepstakes in a meaningful way while California, with laser-like focus, continued to gain prior rights to Colorado River resources and put water to beneficial use in the state. A host of unresolved problems frustrated the state’s leaders, and the confusion and factionalism that characterized Arizona water policy during the 1920s continued through the 1930s and New Deal era. Several powerful political and agricultural organizations continued to excoriate California’s water and power greed while at the same time reaffirming their commitment to state-owned-and-operated reclamation programs. Similarly, states’ rights Democrats, for the most part, dominated Arizona’s political affairs during the period, promising to “save” the Colorado for Arizona, yet offering little new or progressive in water resource development policy. Democratic governors, including the aging George W. P. Hunt, who served his last term between 1930 and 1932, and his successors in the thirties—Dr. Benjamin B. Moeur (1932–1936), Rawleigh C. Stanford (1936–1938), and Robert T. Jones (1938–1940)—maintained proprietary views concerning the Colorado and opposed Arizona’s entering into the Colorado River Compact. In effect, Arizona experienced the expansion and benefits of federal reclamation during the New Deal in theory, not in practice.3 44 DIVIDING WESTERN WATERS During these years...