Public Waters: Lessons from Wyoming for the American West

PUBLIC WATERS

Green River Lakes, Wyoming headwaters of the Colorado River. Courtesy of Rita Donham / Wyoming Aero Photo.

PUBLIC WATERS

LESSONS FROM WYOMING FOR THE AMERICAN WEST

ANNE MACKINNON

© 2021 by the University of New Mexico Press

All rights reserved. Published 2021

Printed in the United States of America

ISBN 978-0-8263-6241-4 (paper)

ISBN 978-0-8263-6242-1 (electronic)

Library of Congress Cataloging-in-Publication Data is on file with the Library of Congress.

Cover photograph courtesy of Rita Donham / Wyoming Aero Photo.

Maps by Rachel Savage, Casper, WY

Designed by Felicia Cedillos

For Cy and Wig

CONTENTS

Acknowledgments

Introduction

The Setting

1. A Modest Proposal: Public Ownership for the Public Good

2. Public Order vs. Private Gain

3. Making Their Own Way

4. Living through Lean Times

5. Facing the New

6. Moving On

Conclusion. Takeaways

Notes

Bibliography

Index

ACKNOWLEDGMENTS

I have been lucky to interview everyone who served as Wyoming state engineer since 1963: Floyd Bishop, George Christopherson, Jeff Fassett, Dick Stockton, Pat Tyrrell, and Greg Lanning; and almost every Wind River tribal water engineer: Kate Vandemoer, Wold Mesghinna, Gary Collins and Mitch Cottenoir. I’ve been welcomed to meetings by members of their respective boards, including Earl Michael, Bill Jones, Randy Tullis, Brian Pugsley, Mike Whitaker, Carmine Loguidice, Dave Schroeder, Craig Cooper, Loren Smith, John Teichert, Jade Henderson, and Kevin Payne on the Wyoming Board of Control; and John Stoll, Sandra C’Bearing, Dick Baldes, Scott Ratliff, Leslie Shakespeare, Merl Glick, Jeremy Washakie, Ron Givens, Kenneth Trosper, Pat Lawson, Howard Brown, and Garrett Goggles on the Tribal Water Board. Several have taken time to talk or tour ditches with me, plus review book drafts. Jeff Fassett, former Wyoming Water Development director Mike Purcell, and former Bureau of Reclamation Wyoming manager John Lawson spent countless hours explaining water to me.

Thanks to academic colleagues Stephen White and Dan Meltzer of Harvard University, and early funding from the Mark DeWolfe Howe Fund at Harvard Law School; to Kristi Hansen, Ginger Paige, Harold Bergman, and Nicole Korfanta at the University of Wyoming; in Germany, to Konrad Hagedorn of Humboldt University, Berlin, Insa Theesfeld of Martin Luther University at Halle, Andreas Thiel, Uta Schuchman; and to Elinor and Vincent Ostrom at Indiana University. And to colleagues at the Casper Star-Tribune, WyoFile, and WyoHistory.org who taught me a lot about Wyoming, especially Dan Neal, Joan Barron, Paul Krza, Katharine Collins, Tom Rea, and Nadia White.

Thanks to those who, in addition to the state and tribal officials above, were always ready to talk water: Dan Budd, Kate Fox, Larry Wolfe, Bern Hinckley, John Shields, Steve Wolff, Tom Annear, Chris Brown, Baptiste Weed, Berthenia Crocker, Geoff O’Gara, Ernie Niemi, Jodee Pring, Barry Lawrence, Jane Caton, Sue Lowry, Marion Yoder, Albert Sommers, Randy Bolgiano, Ron Vore, Jodee Pring, Jason Baldes, Kim Cannon, Dave Palmerlee, Keith Burron, Arch McClintock, John Jackson, Jennifer Gimbel, Jon Wade, Larry McDonnell, Ramsey Kropf, Dennis Cook, Jim Jacobs, and Pete Ramirez. Thanks also to those who, in addition to several people above, read book drafts and offered helpful comments: Ted Ballard, Jim Boddy, Mike Cassity, Carol Rose, and Emlen Hall. And to the staff at the University of New Mexico Press: Clark Whitehorn, Sonia Dickey, Katherine White, and James Ayers. Librarians at the Wyoming State Library; the American Heritage Center at the University of Wyoming; Cindy Smith and Suzi Taylor at the Wyoming State Archives; Laurie Lye at Casper College Library; Lida Volin at Natrona County Library; the county libraries in Buffalo and Wheatland; the Homesteader Museum in Powell; the Buffalo Bill Museum in Cody; and the archives of the Midvale and Shoshone Irrigation Districts were unfailingly helpful. Many thanks to my indefatigable citations and format editor, Josh Moro of Caldera Communications.

Finally, friends and family: MacKinnons Cecil, Steve, and Peter and their families; Petre Osmanliev, Bernie Barlow, Sarah Gorin, George Jones, Connie Wilbert, Reed Zars, Megan Hayes, Tom Arrison, Marion Yoder, Ann Rochelle, Jane Ifland, Will Robinson, Mary Katherman, Eleanor Bliss, Betsy Dodd, Nancy Ranney, and Betsy Weiss. And finally, I am ever grateful to my husband, Jon Huss, and son, Ted Huss, who staunchly supported my every foray into water matters.

All errors are mine.

INTRODUCTION

Believing fully in the doctrine that public waters should remain a public property, and that to grant private perpetual rights is to sacrifice the welfare of future generations.

—ELWOOD MEAD, WYOMING STATE ENGINEER, 1890–1899¹

Heading to Yellowstone past Buffalo Bill Reservoir. Courtesy of Park County Archives.

UNCERTAIN WATER SUPPLY IS one of the most unsettling consequences of climate change and rapid population growth, the legacies of the twentieth century. Finding a way to govern the use of water so that this liquid resource can continue to sustain us and the world we live in is one of the major challenges of our time.

This book tells the story of how water has been used, shared, and sometimes used until it was gone, under a system of rights to water in one state in the western US: the high, cold, and dry state of Wyoming, where mountains gather the snowpack that feeds rivers crossing the dry lands below. It is the story of the rules people have made about using water, in a secluded place where the story is easy to trace.

Water is not to be taken for granted. It moves among us all, coursing through an endless cycle yet possible to deplete at any point on land where people might try to use it. And it can be hard to preclude people from using it. So one person’s water use affects the water use of others. It creates interdependence among people. It creates interdependence between people and the natural world. How water is used affects the well-being of whole societies and landscapes. What we deal with, therefore, are fundamentally public waters. For the welfare of future generations, and of our own, those waters demand governance.²

What has become of public waters? Over a century ago, the arid states of the US West, fearing monopoly private control over all access to water, adopted the idea that water resources should be public property. Then, to attract people and development, these states worked to put the use of public waters into private hands. State governments gave first comers, at no charge, a first right to use water, even when very little water was available; individuals could keep that right—perpetually—if they regularly put the water to use. Not surprisingly, water users and many courts came to see a water right as simply a matter of private property.³

Yet there remain odd twists to those private rights to use water. Not only can a water right be lost for non-use, but it can also be difficult to change to a new use or to use in a different place. Such changes typically shrink the amount of water that can be used. Private water rights are an incomplete property right, say the law treatises. That is because of the powers over water that remain in public hands—such as the crucial power to restrict changes to a new use or a new place. There is public oversight, with veto power, to ensure that the interdependency and overall social welfare issues inherent in water use are respected.⁴

The idea of public property in water thus manages to glimmer through western water law. By giving state governments license to guide their water systems into new paths, that idea may help western states to refresh their water governance. There are examples of that license in action now, as state water management agencies work with entities of all kinds—other states, water right holders, and groups of people who don’t have water rights—to find ways that water can serve all their needs.

The twists and turns of water law have usually been traced in prominent western states—Colorado, California, or Arizona. There, however, the development of the water governance system has been overlain by the growth of substantial and often corporate agriculture, a largely urban population, major hydropower generation and related industries, and considerable investment in massive infrastructure to turn wild western rivers into steady water suppliers.⁵

Wyoming, by contrast, is home to neither corporate agriculture nor genuine urban centers; its dominant industry has been energy, largely shipping raw materials out of state, plus running a few hydro- and coal-fired power plants and mineral-processing plants that use water locally. There are a few big federal reservoirs producing hydropower and irrigation water, but they serve only a small number of people on irrigated lands. The population is hardly urban.⁶

Wyoming is therefore ideal territory for documenting how western water law developed independent of the pressures of urban or industrial growth. Wyoming shows how water law is likely to be animated, everywhere, by local forces easily overlooked in the shadow of urban growth and massive water projects. Local experience with local terrain creates ideas about water that still play a role in water management.

In Wyoming, 130 years ago, there was an engineer who tried to set down a rational system, intending to improve upon California and Colorado water law. Committed to public waters, he sought to achieve a model system that brought new life and power to the idea of water as public property. But an ideal water code cannot simply be dropped down on a western landscape. The terrain asks for a system that responds to it. It requires water governance that reflects longtime interaction among people, land, and water, incorporates a learning process, and embodies the capacity to adapt to change upon change.⁷

Wyoming water law therefore morphed considerably over time, as the people using it encountered the high, cold, and dry landscape in which they sought to live. People experimented in shaping a water-law system that sustained them in that place. At first, they simply wanted their own secure, individual rights to water; they then felt their way to an understanding of the mutual interdependence that water use creates. They experimented and built on their experience of a harsh landscape. Water governance became the work of the community, with some powers over water in private hands and other powers held by the state government, as representative of the public—the relative extent of the powers of the private users or the public shifting back and forth over time. In the web of rules for water that the community devised to make it possible to live where they did, the concept of public property in water glints through.

By the end of its first hundred years, however, Wyoming’s system for governing water had become somewhat rigid. Local society and politics—and accordingly, the water-law system—responded stingily to two demands: the water needs of native people asserting their sovereignty, and the attention that other residents sought for the ecological needs of rivers throughout the state. The effect of climate change, particularly on major interstate rivers, where impacts can ripple back up to the headwater states like Wyoming, has since added to the issues that the state water-law system must address. Now the challenge for Wyoming is refreshing its water governance system. There is reason to believe it can do so, since water governance has been integral and responsive to people and place there for so long—and because the concept of public waters is still alive.

What has happened in Wyoming with water is a distilled version of what has been at play at the local level in other, bigger, more complicated places in the US West. Those other states share with Wyoming the evolution of local water governance in response to people and place; they share its potential for revitalized water management that draws on local experience.

Wyoming covers many square miles but hosts few people, and almost every moment of its water management history has been meticulously documented. The story is not too long to tell or to remember. It is worth a look.

THE SETTING

Red Canyon. Courtesy Merrill J. Mattes Papers, American Heritage Center, University of Wyoming.

WYOMING IS A HIGH, cold, dry land, encompassing nearly ninety-eight thousand square miles—more than twice the size of Ohio or Pennsylvania. Agricultural lands occupy the state’s lowest elevations, but even those average some three to four thousand feet above sea level. More than one-third of the state has an elevation over seven thousand feet, and there are about fifty mountain peaks thirteen thousand feet or higher. Even in the lowest places, there are typically only about 125 frost-free days per year. In some parts of the state, people say the last snow is on June 30 and the first is on July 1. They’re only half-joking. Growing tomatoes in the backyard requires considerable thought and care.

Rain or snow amounts to about twelve to sixteen inches a year in the eastern part of the state (contrasting with forty inches or more in Ohio or Pennsylvania). Precipitation is lower still in some western Wyoming basins, but much higher in the mountains. Trees grow only on the mountains, right along the rivers, or in places where people have spent serious time nurturing them. The rest is sagebrush plains and some grasslands in the eastern part of the state.

The population has always been small. Ancestors of some native people lived there for thousands of years, and some native groups came there centuries before the 1870s, when white settlers and their armies launched the last assaults to take control of the land. In 1890, when territorial leaders made a bid for Wyoming to be recognized as an independent state in the US federal system, Wyoming had sixty thousand new settlers. That same year, Ohio had about 3.5 million people and Pennsylvania 5 million. By 2017, Wyoming’s population managed to grow to just ten times its 1890 size. Those people are in small towns and cities far from one another, and on ranches and farms. The largest city in the state today has a population just a little more than the 1890 population for the whole state—63,600 people. Statewide, native people are under 3 percent of the population.¹

Federal troops forced the native population onto a reservation in the wake of emigrant wagon trains and gold seekers. The settlers who came next went against the grain of a rapidly urbanizing nation, as one eminent historian of the state has put it.² They tried to create family farms and ranches in a difficult landscape, starting in the late nineteenth century and continuing well into the twentieth. One cow in Wyoming was said to require forty acres of grazing land; a herd of a hundred would require four thousand acres, or more than six square miles. Federal settlement laws took a long time to adjust to that reality. A combination of topography and federal policies has meant that people settled and acquired private ownership of lands either in the state’s eastern grasslands, or close to streams, or on a few private or (later) federal irrigation projects. Much of the rangelands, some of the grasslands, and nearly all the forested mountains are now permanently in federal hands, often leased out for grazing. Some 57 percent of Wyoming is federal, tribal, or state-owned land, while 43 percent is privately owned.

Mineral production—particularly for oil, and later, natural gas—took over from agriculture as a prime economic driver and employer as long ago as the 1920s; major coal production kicked in during the 1970s. Much of the mineral is federally owned and managed, but the state can tax the production. Even into the twenty-first century, the state has had no income tax because revenues from coal, oil, and gas production have paid much of the bill of a conservatively fashioned government budget. When cheap energy fuels national prosperity, that typically means a bust in Wyoming. Since the 1980s, Wyoming has been the nation’s largest coal producer, fueling power plants thousands of miles away. The national turn away from coal has put Wyoming in a quandary about its future. Tourism is the second largest industry, but nowhere near as big as energy production has been.³

The landscape is dominated by agriculture and by federal reserves of grazing, forest, and wilderness lands, punctuated by swaths of surface coal mines, oil, and gas development in pockets or major patches and some tentacles of suburban and second-home sprawl. Many ranch and farm operations (and certainly the most vocal) are still family run.

Water in Wyoming comes largely from snowfall on the mountains; of some 18.2 million acre-feet of water flowing in Wyoming streams each year, nearly 16.2 million acre-feet, mostly from snowpack, originate in the state. With its high-elevation lands and low population, Wyoming can’t consume much of that water. Some 15.4 million acre-feet flow out of the state—Wyoming is headwaters to the major US river systems of the Mississippi, the Columbia, and the Colorado. As in other western states, most of the water Wyoming people do use goes to agriculture. People have scoured and leveled land for irrigation, yet just over 3 percent of the land is irrigated. More land is classified agricultural, but only because it can be used for livestock grazing. On the irrigated land, the most common goal is to raise hay to sell or to feed livestock in winter. There are a few places that can raise sugar beets, oats, or even corn. Three-quarters of the state’s crop production, however, is some form of hay—in 2019, worth nearly $430 million.⁴

Because the water comes from snowpack, it is naturally delivered with the rush of snowmelt in the warming days of May and June. Since they first arrived, irrigators (plus a few private investors and eventually the federal and state governments) have been building reservoirs to catch that rush and make it possible to extend the water flow as much as possible through summer. In many places, irrigation by a gentle flood system from ditches in the fields is preferred to the more technically efficient and expensive sprinkler systems, which can’t always pay for themselves in the short seasons and with limited crops of high-elevation lands. The flood system has its peculiar benefits because flooded soils retain the water for a while and slowly let it back into a creek for the irrigator downstream to use—seen by some as a means of water storage for the end of the growing season. Aside from water flowing in the streams, some farms and towns use underground water, though statewide, groundwater use is dwarfed by surface water use. For agriculture, underground water is typically used in the occasional places where the crop is worth the cost of sprinklers tied to a well tapping groundwater that is handily nearby.⁵

More frequent drought, massive mountain forest fires, and smoky summer skies have appeared in some recent years, brought on by climate change. Climate change in turn has been fueled, in part, by the decades during which the nation demanded coal for power—often, Wyoming coal. Today’s challenges make it appropriate to look back, and then forward, in this book. Until lately, Wyoming summers were the most beautiful anywhere. Sleeveless days, cool nights, blue skies, the occasional brief and dramatic thunderstorm. All that was followed by the dazzling winter. Until the erratic climate of the last few years, gray days were rare, and cold sunny blue followed the frequent snowstorms. Winter seems the season the state is made for, with a pure color scheme of brown, white, and every shade of blue in the mountains and the shadows. The cities—most of them just towns, really—are small. People know each other, participate in a very homemade government, and find that they can sometimes genuinely shape what happens in their place. If Wyoming has spoken to you, it can be very hard to live anywhere else.

1. A MODEST PROPOSAL

Public Ownership for the Public Good

I became the voice of John crying in the wilderness for a more adequate public control.

—ELWOOD MEAD, WYOMING STATE ENGINEER, 1890–1899¹

Place: Clear Creek and French Creek, northeast Wyoming’s Big Horn Mountains.

Time: The 1890s.

Buffalo, Wyoming, and Clear Creek. J. E. Stimson Collection, Wyoming State Archives.

ON A HOT JULY day in 1890 under a clear blue sky, people turned out to celebrate the transformation of their territory into a state.

With all the Pomp and Ceremony of a Mighty State—A Grand Parade—Eloquent Addresses!—Firing of Cannon!—Elaborate Fireworks!—Reception and Ball!crowed a newspaper in Cheyenne, capital of the new state.² Statehood meant a lot: no more top officials appointed from Washington rather than elected by local people, and hopes for an influx of new people and money to Wyoming’s sparsely populated lands.³

The parade filled the streets. Marching bands, national guardsmen, and the new state flag flanked by girl guards stepped out with ranks of Civil War veterans, two good-looking milk cows to tout a milkman’s business, and a float from an ice-cream confectioner featuring a fat boy dressed up gaily with a sign testifying that he ate that ice-cream.⁴

Speeches focused on the recognition of voting rights for women—something Wyoming had already done twenty years earlier as a territory and which now, as a state, it was the first in the nation to do. Despite the territorial tradition, there was not universal support for women voting. One of the honored speakers on statehood day, Theresa Jenkins, went door-to-door in Cheyenne the year before statehood, when she was nine months pregnant, to rally women to head to the new capital building and fight a proposal by a few men in the state constitutional convention who wanted to take votes for women out of the constitution and isolate it for voters to decide separately.⁵ When she spoke at the capitol on the celebration day the next July, Jenkins graciously omitted any reference to the opposition: Happy are our hearts today, and our lips but sound a faint echo of the gratitude within our bosoms . . . We have been placed upon the very summit of freedom and the broad plain of universal equality, she said.⁶

Francis E. Warren, the territorial governor—like many of the leaders of the territory, a Civil War veteran—would soon be elected state governor, a post he quickly abandoned to become a US senator. Warren struck the same note in his speech:

Here, in the open air, near the crest of the continent, Wyoming, forming the keystone of the arch of states extending from ocean to ocean, celebrates an event significant in the extreme, new in the history of our country, and without precedent in the world; that is to say, a state, in adopting its constitution, extends free and equal suffrage to its citizens regardless of sex.⁷

There was one other unusual portion of the constitution adopted for the new state of Wyoming, which otherwise largely copied what had been done by other recently admitted western states. The other notable portion in the new constitution dealt with a quite different issue: water.⁸

Water was a resource that was scarce and therefore valuable. It was in demand and not always easy to access, particularly for the agriculture believed to be important to Wyoming’s future. The state constitution proposed to sort out and stabilize water use.

The poet of statehood day, after celebrating women’s right to vote, led her listeners to appreciate the further promise of the new constitution for a new dawn:

If we look within the future, our prophetic eyes can see

Glorious views unfold before us, of joy, wealth, prosperity,

We can see the sons of Science, Music, Poetry and Art

Coming to our grand dominion, in our growth to take a part.

We can see the iron monster, rushing fiercely to and fro,

We can see the sky o’erspread with smoke from furnaces below.

 . . . See the plains, now dry and barren, where the sage or cactus grows,

Desert plains, no longer barren, then shall blossom like the rose.

Thirsty lands, no longer thirsty, filled with moisture wisely stored,

Bounteous to the happy farmer, noble harvests will afford.⁹

Two of the young sons of Science of whom she spoke had in fact recently come to Wyoming. They were already at work on that celebration day, acting out their ideals of public service. One was Edward Gillette, a Yale-educated railroad surveyor. The other was Elwood Mead, a Purdue-trained engineer. Like the poet, both saw science and planning as the tools to help turn the raw settlements of a territory into a community.

Gillette, at thirty-six, arrived in Wyoming the summer before, heading the first railroad survey into northeastern Wyoming—Powder River country. He laid out routes to ship out cattle and coal. He was earnest and thorough, and the railroad he worked for put his name on a town that ninety years later was the capital of the US coal industry.¹⁰

Gillette soon saw the impact of his work firsthand in the town of Sheridan, nestled in rolling lands where the Big Horn Mountains meet the Powder River basin right near the Wyoming-Montana line. Fledgling farmers and small stockmen in that area were mired in a swamp of debt. Once Gillette’s rail line connected them to markets a couple of years after statehood, though, they quickly made their way to solvency, even prosperity. Gillette liked adventure; he later went off to survey the rail route to the Klondike gold fields. But he had fallen in love with a girl from Sheridan. It was there that he settled down.¹¹

The other young Son of Science, Elwood Mead, was thirty in the summer of 1890. He had arrived in Wyoming Territory two years earlier and had spent months driving a wagon across it, gauging creeks and rivers, examining county record books, and mentally drafting water statutes. He had crafted a whole new scheme for water management and had managed to get it written into the new state’s constitution. Now he had to put that scheme into action.¹²

Having grown up on an Indiana farm by the Ohio River, with plenty of rain and floods, Mead landed his first job teaching agricultural engineering in Fort Collins, Colorado. In Colorado, Mead saw firsthand what water in a dry country could mean for good and for ill. On the Colorado plains, as in Wyoming and much of the West, precipitation was perhaps one-third of what it was where Mead grew up. There could be raging floods in the spring but dry rivers in the fall. Mead worked in the summers for the top water official of Colorado, gauging irrigation ditches along the South Platte River, which was home to assorted irrigation colonies and ditch companies competing for water. When new ideas for managing that competition failed in the Colorado legislature, Mead took up an offer to move north and become Wyoming’s first territorial engineer, in 1888. When he arrived, he started drafting new laws, to avoid the water problems he’d seen in Colorado.¹³

Within a few years, Mead and Gillette joined forces, and together they put Mead’s new ideas about water to work in Buffalo, Wyoming, along the Big Horns south of Sheridan.

Centuries before Mead and Gillette, the land they saw anointed as a state had been familiar ground for a variety of peoples. By the 1830s, as the United States gazed increasingly westward, a people who became known as Eastern Shoshone were in the southwest portion of what became Wyoming. Northern Arapaho were in the southeast and central areas, Crow in the north and central areas, and Sioux in the northeast. As hunting peoples, they moved back and forth across the landscape with the game and the seasons, using both land and water lightly (unlike the people for whom Mead did his planning). Each dealt with incursions from European-origin people differently. The Eastern Shoshone, who joined the rendezvous fur trade meetings in the 1820s and 1830s, held to a friendship policy, even as increasing numbers of newcomers in the 1850s and 1860s beat a path to the Pacific Coast across their lands and killed or drove out game along the way. The Northern Arapaho, Crow, and Sioux tended to clash with those trespassers on their hunting grounds.¹⁴

Though the US government initially signed treaties recognizing vast areas as exclusive tribal lands, increasing overland wagon trains and construction of the transcontinental railroad led the federal government to force new deals on the tribes. In 1868, the Northern Arapaho and their neighbors, to protect key lands for their own use, agreed to sign with the United States a treaty that was soon shredded. Also in 1868, the Eastern Shoshone accepted treaty establishment of a reservation of over three million acres embracing the Wind River valley in western Wyoming. That was a drastic drop from the 45 million acres (across what are now several states) the government, only five years before, had promised for the exclusive use of the Shoshone and their related tribes.¹⁵

The idea of boundaries, however, was alien to people who had known none and had moved when they liked—wherever the opportunity for food and shelter, and the lack of opposition, had allowed. Not until the 1870s did scarce game and the US Army ultimately force native people like the Shoshone to settle on the reservations, the only places they could receive promised federal government support.¹⁶

When Wyoming became a territory in 1869, new legislators immediately attacked the treaties of 1868. The new territorial governor said the treaties had locked away from settlement important parts of our strong box and our garden spots. Of the reservation on the Wind River, the legislators at first demanded that it be eliminated, and that the people on it be moved elsewhere. Two years later, with that goal not achieved, the territorial legislators insisted that Washington drastically cut back the size of the reservation. Their pressure began a nearly forty-year process that ultimately succeeded. Meanwhile, the treaty signed by the Northern Arapaho and their neighbors in 1868 soon became meaningless, drowned in bloodshed as European-origin settlers claimed gold or land in treaty territory. In 1876, just a little north of the boundary of Wyoming Territory, the Sioux and Cheyenne wiped out George Armstrong Custer’s forces—but were ultimately forced out of their most prized lands in northeast Wyoming. The Northern Arapaho, in 1878, were forced by the US Army onto the Eastern Shoshone’s Wind River Reservation. When a key US Army general sympathetic to the Arapaho died, Northern Arapaho hopes of getting their own reservation died too. The Shoshone and Northern Arapaho had long been enemies, but the temporary arrangement for both tribes to live on the Wind River Reservation became permanent.¹⁷

Soon after, the town of Buffalo bustled rapidly into existence. In 1879, the US Army built Fort McKinney on a good stream called Clear Creek in northeast Wyoming, among fertile foothills on the edge of the Big Horn mountains. The fort was intended to solidify the army’s presence east of the Big Horns. As soon as the fort was established, its commander and provisions master set the pace for claiming land and water. They filed papers on public land just outside the fort boundaries so they could grow hay to sell back to the fort. Traders, suppliers, hotelkeepers, and brewers materialized (with the first hotel and bank sheltered in a tent), and together they built a town. Nearly all the shop owners in town filed on land, and more importantly, on water. With both in hand, they raised cattle, hay, garden produce, and barley for the humming breweries. Even when the army shut the fort in 1895 and the soldier-customers disappeared, the town found the strength to stay. In the one hundred years since, a remarkable number of the names from the early 1880s have continued to populate Buffalo, its neighboring ranches, and its elected offices. The hotel that emerged from a tent is still operating there, too—with weekly music jams where locals play bluegrass.¹⁸

Getting access to water was no small part of the enterprise of those first settlers in Buffalo. In 1884, for instance, some went up into the mountains and with teams of horses cut a diversion over the intervening divide to take water out of Clear Creek and put it into the headwaters of the smaller French Creek, which ultimately joins Clear Creek a little east of Buffalo. They managed to get their diversion installed just days before the big Wyoming Land and Cattle Company, south of town, built a diversion to tap Clear Creek for its ranch operations.¹⁹

French Creek is not fed by the high mountain country that feeds Clear Creek. Left on its own, French Creek would run dry in early summer. So French Creek valley became and remains a green and pleasant place, not so much because of French Creek itself, but because of the water brought to it from Clear Creek.

Meanwhile, the town of Buffalo grew—and it, too, relied on Clear Creek for water. The intricate patterns of what water went where, in the ditches dug by busy settlers with mule teams, were a nightmare to sort out. Young Mead soon cited them as western classics of dizzyingly complex irrigation systems.²⁰

For well over a century, Buffalo and French Creek have kept going, supported by their tangle of irrigation ditches. The local economy has been agriculture, but also scenery—since the 1880s, eastern money has come in to buy and keep some of the beauty of the Big Horns foothills (and dude ranches sprang up before World War I, bringing in visiting money that some local cowboys managed to marry into). By the mid-1990s, only one ranch on French Creek was making a living from agriculture; the other owners ranged from a retired major oil company CEO, to a New York banker, to the county attorney making a living in town. In 2020, Buffalo is best known as the real-life inspiration for the town featured in the Netflix Western series Longmire. Buffalo has grown a little, and with it have bloomed sales pitches for ranchette subdivisions. Squabbles over land use planning follow. The question is whether, and how, to manage the beauty of the open spaces that has been an important resource for the town since it began.²¹

Notably, it is newcomers to the area—not the people with big money, but the ones dreaming of ranchettes—who have been the main opponents to land-use planning. They came out West for freedom from the rules they knew back in, say, New Jersey, and they are determined to make their idea of freedom stick here. Wyoming’s Cowboy State logo can attract such people. Yet while the standard polemic in Wyoming may be anti-government, the standard experience has long been joining together in government. In a big place with few people, government is an intimate affair. It really is by, for, and of the people. People are members of their local boards and agencies; they have often known their legislators and their governor personally. The lone rancher trying to make a living on French Creek in the 1990s, on the place his father built in the 1940s, was elected to the county commission and pushed for land-use planning.²²

People in Buffalo—and in Wyoming—have wrestled before with how and whether to plan for and manage natural resources. Though it’s not always recognized, they, and others like them in the West, have some special history to draw upon. It is the history of water management that starts with bright young Elwood Mead. He helped Wyoming people come up with a unique way to handle the water resource they all depend upon. French Creek, as it happens, was a key testing ground for Wyoming’s initial experiment in water management. Buffalo and its neighboring ranch valleys, so attractive to newcomers today, attest to the strengths of that scheme for managing water that has grown and changed to meet assorted challenges over a century.

In early 1888, Mead, the twenty-eight-year-old engineering professor, received a letter from his former boss, E. S. Nettleton, who had been Colorado State engineer. The two had become close friends. Nettleton wrote that he had been talking to a Wyoming legislator interested in water, helped draft a bill to flesh out a job overseeing Wyoming water, and recommended Mead for the job.²³

Mead traveled the forty miles north to Wyoming’s capital city, Cheyenne. He discussed the job with some legislators and Thomas Moonlight, the territorial governor. Moonlight, once a losing candidate for governor of Kansas, had been appointed to Wyoming by the Democratic administration then in Washington. He was blustery, chronically at odds with Wyoming’s Republican territorial legislature, and certainly not politically adroit.²⁴

A few hours after their interview, Moonlight ran into Mead on the street in Cheyenne. The governor stopped him, as Mead recalled years later: He said, ‘You’ve been on my conscience ever since I first saw you this morning. I didn’t know you were so young. If I had known this I would never have offered you the place, and the reason is that if you come here I am sure you will fail.’

The Governor had quarreled with the Legislature, Mead went on, and had an unfavorable opinion of the influence which dominated public life in Wyoming. He ended his talk with me by saying, ‘I do hope and pray to God that you will reconsider and not accept this place.’²⁵

Mead went back to Fort Collins, where over the next few days, others painted a more favorable picture of Wyoming politics.

Then Mead met, in person, the influence which dominated public life in Wyoming—Francis E. Warren, later a headliner at the statehood celebration. A Massachusetts farm boy who went off to the Civil War, Warren had arrived in Wyoming in 1868 at age twenty-three to work in a dry-goods store. He soon took over the store and ultimately plunged into almost everything he could think of—ranching, starting an electric lighting company, and investing in blocks of downtown Cheyenne real estate. In 1888, Warren, at forty-three, had lately been the territory’s staunch Republican-appointed governor, and soon would be again; he despised Moonlight, whom Democratic president Grover Cleveland had appointed to replace him.²⁶

Warren was in fact Wyoming Territory’s only mostly home-grown governor, and he fought for home rule and statehood. His greatest talent was politics, and he managed to unite Wyoming’s warring petty political factions to bring in the federal largesse that alone could make up for gaping holes in a place likely to see only slow development. After statehood, he spent more than thirty years doing just that as US senator.²⁷

Warren made his way by his ability to judge people—one of his many ventures was assessing business prospects for the predecessors of Dun and Bradstreet—and to use his blunt charm, or money or threats, to get key people to do what he wanted. His voluminous letters between Cheyenne and points east, stored today at the University of Wyoming, make him appear to have been a formidable mix of Theodore Roosevelt (a friend) and Lyndon B. Johnson, without their interest in or impact on national policy. Warren asked Mead to take the territorial water job. (As he told Mead years later, however, Warren saw Mead as still wearing pinafores when he first came to Cheyenne.)²⁸

Mead, meanwhile, wanted the job, regardless of Moonlight’s advice. Mead’s baby face belied his determination to put into action his ideas about water in the West. In Colorado, he had seen bitter struggles between would-be farmers and ranchers, and between farmers and would-be irrigation companies—fights over who had rights to how much water, and battles over speculation in water and attempted monopoly of water supplies.²⁹

Wyoming Territory, with settlement, government, and water law all in a fledgling condition, presented—far more than did Colorado—a clean slate on which Mead thought he could chart new policy. He believed that western states could avoid destructive conflict by using public control to manage resources for the greater public good. Warren and his associates also saw public order as critical to buttressing their business prospects and investments. Stockmen needed a reliable system of water rights to protect the small clutch of water claims on which their stock increasingly depended. Further, because their open-range stock industry had begun to founder, they were looking toward new kinds of development for a territory where there was not much other economic activity. Warren and other stockmen had in fact already invested in at least one new irrigation venture, which might benefit from an orderly water rights system controlled in Wyoming.³⁰

So Mead came to Wyoming backed by Wyoming patrons, both he and they believing that the time had come for firm state government intervention in water rights matters. Mead’s commitment to government involvement in water went deeper, however, than his stockmen backers probably understood at the time. Mead felt that those who drafted new water law in the West were shaping legal principles controlling not only water use, but also the social and economic fabric under which unnumbered millions of people must dwell. For him, that imposed a near sacred duty.³¹

Mead saw resource law, based on public ownership, as a tool that people in new territory could use to foster communities. He had a specific kind of community in mind—a community self-sufficient not only in economic but also in social terms, providing itself with the educational and cultural resources to make rural America a vital and satisfying place to live. These communities would then also become the birthplace to the kind of citizens a democracy needed.³²

Though his belief in the connection of resource law to democratic societies had a rosy tinge, Mead disparaged the extreme agrarian romanticism of leading irrigation boosters in the 1890s, who imagined the West as a garden spot that would bloom if just a little money and water were added. He partook more in the natural resource conservation thinking that was beginning to come of age in the late-nineteenth century, with the dawn of the Progressive Era and eventually the era of its conservation standard-bearers, Theodore Roosevelt and Gifford Pinchot. Mead believed in government’s giving a preeminent role to science, to scientists, and to engineers in managing resources for the greater good. He thought that public resources should be put to work through private use, but they should never lose their public character and their ultimate subjection to public control. The goal was to ensure that public resources would continue to serve changing social needs.³³

After a few years of work in Wyoming, Mead’s thinking matured into a belief