Dividing Western Waters: Mark Wilmer and Arizona v. California

Introduction

On October 9, 1986, I sat in my rental car at the Albuquerque, New Mexico, airport, looking for a self-described “slight, bespectacled, eighty-five-year-old retired judge” and lawyer named Simon Rifkind. One week earlier, the thenlegendary special master of the Arizona v California Supreme Court case had somehow found my home phone number in Tucson, Arizona, where I was serving as assistant director of the Southwest Center at the University of Arizona. Rifkind called to ask if he could hitch a ride to the Inn of the Mountain Gods on the Mescalero Apache Indian Reservation in Ruidoso, New Mexico. In a scheduling incongruity of unprecedented scale, we were the two guest lecturers at the annual meeting of the New Mexico Bar Association. I learned later that one of my former professors had tipped off Judge Rifkind to my ongoing research on former Arizona Senator Carl Hayden and the long, convoluted history of Colorado River development. I had intended to sit in on Judge Rifkind’s plenary address in Ruidoso, but I never conceived that he would call and ask for a ride to the conference. As he told me his flight number and estimated time of arrival in Albuquerque, I regrouped: “Judge Rifkind,” I stuttered, “do you mind if I have a tape recorder on for the four-hour ride between the airport in Albuquerque and Ruidoso?” “Not at all,” he replied, “I know what you are doing, young man, and I want to talk about Carl Hayden and Mark Wilmer.”1 I was stunned and excited. At this stage of my research I had learned that Hayden’s writings and utterances in Congress had influenced Rifkind’s thinking in his various analyses of the legal issues concerning the interstate conflict over the Colorado River system, and I knew that Wilmer was one of the Arizona attorneys who had argued the case, but at the time, I was focused on Hayden’s political role in the broader issues surrounding the Colorado River rather than Wilmer’s legal contributions to the case. I had seen perfunctory correspondence between Wilmer and Hayden’s administrative assistant, Roy Elson, but at this time Wilmer was little more than a name that I knew was a part of the legal team in Arizona v California. INTRODUCTION xvi DIVIDING WESTERN WATERS For an octogenarian, Rifkind was energetic, precise, and funny. As we headed down I-25 toward Ruidoso, we discussed Senator Hayden at length and he allowed that the Arizona senator’s arguments in the debates surrounding the 1928 Boulder Canyon Project Act, and Wilmer’s focus on that legislation, played a major role in the findings of his Special Master’s Report of December 5, 1960, a celebrated legal rumination that framed the ultimate outcome of Arizona v California.2 Then he turned his attention to Mark Wilmer. As we approached our destination in Ruidoso, he pivoted in his seat, looked directly at me, and said, “That attorney from Arizona, Mark Wilmer, is the guy who…changed the course of the history of the American West.…He deserves some attention. “That earlier group [Arizona’s legal team],” he continued, “was playing right into the hands of California, but Wilmer changed Arizona’s approach to the case, and he was masterful in oral arguments in San Francisco.”3 The not-so-subtle message remained with me and I filed this information away, thinking that, some day, when I completed my manuscript on Carl Hayden, I might have time to take a look at Wilmer and the legal history that surrounded the water resource development in the American Southwest. Maybe, I thought, I would write an article and submit it to the Western Historical Quarterly or Pacific Historical Review. I later realized that “I got the cart before the horse”; a book on Wilmer was actually a prequel to my earlier effort, Vision in the Desert: Carl Hayden and Hydropolitics in the American Southwest (Fort Worth: TCU Press, 1999). And, with the assistance of Snell & Wilmer, which Mark Wilmer founded with Frank Snell in 1938, I have been able to place the role of the monumental Supreme Court case Arizona v California into its proper historical context. I never conceived in 1986 that one of Arizona’s foremost litigators and distinguished members of the bar, Mark Wilmer, would shape the economic, legal, and political future of the American West. For most of the twentieth century, Mark Wilmer and the Colorado River lived parallel but...