Lawyer Takes Pioneering Role in Winning Colorado River for Arizona

Dividing Western Waters: Mark Wilmer and Arizona v. California
Jack L. August, Jr. TCU Press $32.95 cloth. For information about ordering call 800-826-8911 or check: http://www.prs.tcu.edu/

Legend has it that the West was won by rugged pioneers trekking through inhospitable terrain to settle in isolated back-country areas. Here they endured brutally harsh conditions to eke out a living, raise families and eventually build communities. Thus were sown the hardy seeds that grew into states.

A new book, “Dividing Western Waters,” hails another kind of groundbreaker, Mark Wilmer, a lawyer whose labors, although not as colorful or robust as those of the pioneers of yore, have been credited nonetheless with enabling Arizona to grow, thrive and, some have said, to survive as a state. Wilmer is the attorney credited with Arizona’s victory in the 11-year court battle known as Arizona v California.

At issue in Arizona v California was the amount of Arizona’s allocated 2.8 million acre-feet the state could take from the main-stem Colorado River; also at issue was whether California could claim any or most of this allocation based on prior appropriations. Author Jack August gives due recognition to Wilmer who, more than any other single person, ensured that Arizona would get its share of Colorado River water.
A growing Arizona very much needed Colorado River water. Congressman John Rhodes said at the time, “Without more water we are all going to perish.”

Clearly Arizona v California was viewed as determining the very fate of the state, promising deliverance and seemingly even salvation to a state in desperate need.

August focuses on Wilmer, the main actor in the legal drama, describing his role in leading Arizona to victory in the case. In progress since 1952, the case appeared to be going badly for Arizona, its lawyers pursuing a strategy that U.S. Supreme Court Special Master Simon Rifkind later described as playing into the hands of California. State leaders were understandably dismayed and appointed Wilmer in an effort to the salvage the cause. August cites Wilmer’s own appraisal of the situation he was about to take on. He said it was in “ a hell of a mess.” He took on the case in 1957.

Wilmer’s work began at a time when the case appeared to be winding down, with Arizona having finished putting on its case in chief and California in the process of presenting its case. Wilmer advanced a new legal strategy without assurances that the Special Master would even consider the new approach. Basic to the strategy was a consideration of the historical context of the Boulder Canyon Project Act; Wilmer argued his case with reference to a congressional apportionment scheme of Colorado River water found in the congressional consideration of the 1928 Boulder Canyon Project Act.

The decision was never a forgone conclusion. August describes Wilmer as being troubled about its possible outcome; he felt that the Court focused its questions on issues that he thought were irrelevant to his argument.

The final decision, however, was in favor of Arizona. Arizonans would better savor the victory it they knew more about the skirmishes, strategies and maneuverings that won the day. August provides many of these details in focusing on Mark Wilmer, the man said to have won the Colorado River for Arizona.