Ron Fode had plenty of water. He just wasn’t allowed to put it on his crops.
Did the government use a secret deadline to skirt water laws and cripple Fode’s farm with draconian fines? He contends agency bureaucrats abused their authority, denied due process, and refused to abide by state law.
Fode’s real crime, he insists, is saving his crops and refusing to comply with illegal directives. Damned if he does; damned if he doesn’t.
In a landmark farm battle, backed by a host of agriculture groups and water organizations, Fode is taking his case to the Washington Supreme Court.
“This has come at the cost of our farm lives and legacy,” he says. “We want justice, not just for ourselves, but for other farmers and landowners, because we don’t want this to ever happen to anyone else. The state tried to bury us, but the truth is hard to hide.”
Cease and Desist
In 1984, Fode, alongside his wife, Robin, took the reins of a fourth-generation family farm in the Moses Lake area of Grant County in eastern Washington, and continued growing row crops and producing cattle. Four kids, 4,000 acres, and decades later, the couple had shepherded a highly successful operation.
Fode’s soil is good sandy loam, conducive to potatoes, onions, sweet corn, and a host of other vegetables. However, most crops grown is his gently rolling hills need ample water, delivered by irrigation pivots, to thrive in a locale where 8” of rainfall per year is the norm.
“Irrigation is everything,” Fode explains. “As a kid on the farm, life was changing siphon tubes, a little bit of flood irrigation, hand lines, and wheel lines. I was a champion siphon tube setter at the Grant County Fair back in the day. Now, pivots are crucial.”
Fode managed water rights across both owned and leased ground. Depending on crop, precipitation, rotation, fallowing patterns, and location, he kept a keen eye on matching water rights to a given field—apply only as needed.
However, in early 2017, the mix-and-match irrigation puzzle left Fode lacking adequate water on 530 acres of potato, hay, and alfalfa ground. “This was mainly on farmland we’d leased for 19 years and never had a problem. The lease had irrigation and water rights, and so did we. In a nutshell, we had enough water certificates to cover everything and we’d done this for years. Basically, I needed to submit a water plan to the Department of Ecology (DOE) and change things up.”
Fode asked for a seasonal water rights transfer—a standard method of compliance that enables a farmer to lawfully change water use and remain within legal limits. In the vernacular: Irrigate here instead of there and stay within an overall water allowance.
However, Fode’s irrigation dance came to an abrupt halt. DOE rejected Fode’s water transfer request. Why? To Fode’s shock, DOE claimed he was past its February 15 “office deadline” cutoff for application.
Ecology was given a plan, including a map, with well certificates and acreages mapped out. “They didn’t ask a single question about it,” Fode explains. “Instead, they were deceitful, lying to me repeatedly that it was too late to do anything.”
DOE didn’t process or investigate Fode’s application. Rather, they closed up shop, citing the February 15 deadline.
Denied water, Fode’s crop setup instantaneously was in severe jeopardy. Yet, the February 15 closing date was created entirely at DOE’s whim: The purported deadline had never been published, presented for public comment, or adopted as a rule. “Truth is, there was no deadline,” Fode says. “There was no cutoff. They made it all up inside the DOE office.”
(DOE did not respond to Agweb requests for an interview regarding the Fode case.)
Allison Daniel, a Pacific Legal Foundation (PLF) attorney representing the Fodes, says DOE moved the goalposts: “Ecology played fast and loose with rulemaking. The February 15 deadline was essentially a secret rule. If Ecology is allowed to make secret or arbitrary rules, then they’re expanding their authority beyond what the Legislature gave them the ability to do.”
DOE’s refusal to process Fode’s application left the Grant County grower with no way to legally turn on the water spigot. He knew his crops would burn. Yet, if he dared to irrigate, DOE would impose daily fines.
“How could it possibly be legal for Ecology to have a secret deadline to begin with? We didn’t know about any deadline and they sure never called us,” Fode’s wife, Robin, explains. “They never even contacted us until the night before the supposed deadline. They could have handled this in so many other ways, but they chose a heavy hand because they wanted to. The only thing that they ever said to us afterwards was, ‘Cease and desist.’ Their attitude was totally, ‘Don’t water or we’ll crush your farm.’ It was all threats, scare tactics, and bullying.”
Fode was not about to watch his crops wither. He pumped on water.
Death of a Thousand Cuts
“I’m not a lawyer or a water law specialist,” Fode notes. “I was just trying to do my job and to farm as best I could. Farming today means being a negotiator, an accountant, a chemist, and an agronomist. Ecology came in super aggressive, expecting me to throw in the towel. I don’t know their motivation, but I do know this: They didn’t follow the law. They went right to enforcement and provided no technical assistance, all while knowing I was left with no choice. I could either water or lose my crops.”
Fode’s emphasis on “technical assistance” casts a spotlight on DOE’s actions—or inactions, from Fode’s perspective. The Washington Legislature, to help landowners navigate the maze of state water regulations, requires DOE to provide technical assistance to help applicants comply with water laws, prior to any punishment. Simply, the technical assistance requirement is state law—set in stone. It’s a mandatory prerequisite; not a suggestion.
“Technical assistance is an absolute part of the law,” Fode notes. “Ecology wasn’t supposed to issue threats; they were supposed to help me come into compliance, but instead, they withheld important information and didn’t disclose anything to say what might work or what changes could be made. The whole time, my landlord and I both were trying to problem solve, but DOE kept being deceitful with the deadline. My landlord and I, during spring and summer of 2017, were trying to get them to follow the law, but all they did was lie about deadlines and threaten me, demanding I turn off water to crops I had contracts on.”
DOE bypassed technical assistance and moved straight to enforcement. “They didn’t want to talk or offer compliance help,” Fode notes. “They recognized technical assistance, properly given, would have meant a watering solution for everyone. Instead, they told us we were too late for any remedy, according to their fake deadline. That, by any other name, is a bullying tactic to wear people down.”
“Ecology knew, by law, they were supposed to provide technical assistance to help us comply with water regulations,” Robin adds. “The truth is they never really wanted us to comply. Instead, they wanted control and were willing to destroy us in the process. If our farm went under due to fines and attorney fees, that was fine by them. Death by a thousand cuts is how they play.”
Waging Water War
The Fodes were in a vise, pressed on one side by hundreds of thousands of dollars in DOE fines, and on the other side by breach of crop contract and the loss of millions of dollars in damages. Turn water on and face severe DOE penalties or shut off water and lose an entire crop? They turned on the pivots.
On June 26, 2017, DOE responded with cease-and-desist orders. According to DOE, agency staff went onto Fode’s farmland 35 to 40 times during the 2017 irrigation season to monitor soil conditions and pivot activity. DOE personnel carried a form to note “(1) when the visits occurred, (2) where the pivots were located, (3) whether the pivots were on and irrigating, and/or (4) whether the fields were wet.”
PLF attorney Daniel says DOE’s repeated visits are telltale. “Mr. Fode was able to access the seasonal transfer system in years past, but this time, in 2017, Ecology just didn’t want to give it to him. Instead of working with him to try to transfer water rights from his other farmland, they went on the property 35 to 40 times to see what he was doing. Why not work with him 35 to 40 times for a compliance option?”
The dozens of DOE cropland visits tell a tale, Fode says. “They drove hours to get here and back 35-40 times to go headhunting and find fault? Why not just help me to water my crops? My tiny office is a single-wide mobile home: Why not just knock on the door?”
The Fodes never realized DOE had repeatedly entered the property. “That’s a pretty remote area of our farm and we never actually saw the Ecology representatives out there,” Robin describes. “Had we known, we’d have said, ‘You’re trespassing and get a warrant.’ We don’t even know who these people were. Try to imagine bureaucrats coming from Seattle, where it rains profusely, to our dry farmland and making judgements and taking pictures.”
“They did all of this at the instruction of Kevin Brown (Ecology’s Columbia Basin Watermaster), the guy who’s gone after us the hardest this whole time,” Fode echoes. “He’s not a farmer. He’s not a soil specialist. He’s a hydrologist. He knows water regulations, but don’t tell me he knows a thing about how a well needs to be pumped or a crop grown. Neither he nor his agency should have been able to enforce secret policies. They then used a secret deadline to deny us a water transfer, hit us with devastating fines, and tell the public we were terrible criminals—and they seemed proud of what they did.”
DOE penalized Fode for 500 million gallons of irrigation water on 530 total acres and fined him $618,000. Highlighting the regulatory enforcement, DOE issued a press release (Landowners fined for illegally pumping 500 million gallons from Odessa aquifer) proclaiming that Fode had “disregarded warnings and orders from Ecology.”
“These landowners willfully ignored the law and tapped into a vulnerable aquifer without a legal right to do so,” stated Mary Verner, Ecology’s Water Resources program manager.
“She disparaged us and basically told the public we were water thieves,” Fode responds. “But guess what Mary Verner never mentioned? She never mentioned that we fallowed ground to commence coming into proper compliance. Didn’t matter to Ecology. Nothing reasonable mattered to Ecology.”
Significantly, DOE’s press release also did not mention the department’s duty to provide technical assistance, Fode’s water transfer request, or the arbitrary February 15 deadline.
“It was $618,000,” Robin emphasizes. “That meant burying us and they knew it. That wasn’t a penalty seeking a solution. That was waging water war. And look at the duplicity of Ecology. They fined us $618,000 for using water they knew we had rights to with a transfer they denied.”
DOE’s subsequent water decisions put a glaring “absurdity” on display, she insists. Why? In 2018, DOE allowed the Fodes to do exactly what they asked to do in 2017.
“Think about what a ridiculous regulatory game Ecology played,” Robin details. “In 2018, the very next year after they came after us guns blazing, we submitted the same water program that we’d been denied on in 2017. Guess what? They approved it and said it worked just fine.”
“You can’t make this stuff up” Fode echoes. “We were like, ‘You gotta be kidding. That, by itself, is a can of worms for DOE.”
Hide Nor Hair
The Fodes appealed their 2017 case to the state’s Pollution Control Hearings Board (PCHB) in Seattle.
“The Board was three lay people and an administrative judge,” Robin recalls. “I watched them close and I didn’t blame them for not knowing anything about agriculture, but their eyes glazed over. They couldn’t make hide nor hair about the realities of what we were explaining.”
However, the Fodes initially were hopeful that PCHB would look favorably on their case. “The DOE regional manager for the Water Resources Program at that time, Keith Stoffel, was asked by our attorney, ‘Did you offer Fode Farms technical assistance?’ The DOE guy paused,” Fode recalls, “and answered, ‘No, we didn’t.’”
“Our attorney thanked him for being frank and followed up with a question: ‘Why didn’t you offer technical assistance?’ I’ll never forget the response,” Fode continues. “The DOE manager put his head down and said, ‘I don’t know why. We just didn’t.’”
At that point, with DOE admitting a denial of technical assistance, the Fodes believed resolution was close. They were wrong. “Yeah. We sincerely thought the case would be over,” Fode explains. “Ecology admitted, in a legal proceeding, that they’d not followed the law. Didn’t matter in the end.”
PCHB lowered the penalty, but placed culpability on the Fodes. Essentially, PCHB ruled that Ecology offered technical assistance by ordering Fode not to irrigate. Amended penalty: $260,000.
“When the actual Ecology manager admits they didn’t help us, in direct contradiction of the law, but we still get labeled as criminals, that’s as tough as it gets,” Robin says. “Ecology hauled in all this documentation from Google Earth and aerial photos, and they’ve got all these experts, and you literally get lost. You don’t even know if they’re showing your ground correctly because it’s so much spaghetti on the wall. All you know is your legacy is disappearing right before your eyes.”
Next up, appeals to Grant County Superior Court and the Court of Appeals Division II. The Fodes refused to roll.
A $618,000 Error
In a nutshell, the courts ruled that technical assistance requirements were optional. Therefore, telling the Fodes to stop irrigating was case closed.
“It was sickening,” Robin describes. “If you think government intimidation isn’t real, then you should’ve walked into the court. Basically, it was Ron and I, along with our attorney, and sometimes a friend or relative, against an entire room of Ecology personnel. And they’re all self-professed experts and very proud of their titles. Guess how many of them live in a rural area. Guess how many of them are farmers, agronomists, horticulturists, or land specialists? None.”
What of the arbitrary February 15 deadline? “The Court of Appeals acted like Ecology’s deadline was just a clerical error,” Fode insists. “If that’s the case, then that error resulted in a $618,000 fine on our farm.”
Following the decisions, Fode filed for review with the Washington Supreme Court. The Court agreed to hear his case. PLF, free of charge, represents the Fode family.
“Ecology was incredibly overzealous,” says PLF attorney Daniel. “At the heart of this case, they didn’t follow the law. There was a clear statute requiring technical assistance. Declaring that Mr. Fode couldn’t irrigate is not assistance—it’s simply enforcement. Prior to punishing people, Ecology must help them comply with the law.”
“Additionally, Ecology made up their own rule for why they didn’t have to provide Mr. Fode with assistance,” Daniel continues. “Ecology said, ‘We’ll make up our own February 15 deadline and then we don’t have to assist people if we don’t want. We don’t even have to give Mr. Fode access to the process.’”
The Washington Supreme Court is expected to hear Fode’s case in fall 2026. The Fodes have gained the backing of multiple agriculture groups and water organizations, including the Washington Cattlemen’s Association, Washington Farm Bureau, Columbia-Snake River Irrigators Association, Washington Water Utilities Council, National Federation of Independent Business, and Pacific Legal Foundation, along with more support pending.
“We appreciate the support so very much,” Fode says. “Lots of people, when they see the government is involved with you, will either lay low or walk away. Try going to the bank with all this hanging over you. You’re now a risk, and it doesn’t matter that the state has used misinformation, press releases, and misconceptions to pile on ridiculous charges. Really, you find out who your friends are.”
Greiff, King, Fode
The Fodes contend that DOE operates on a double standard. The Grant County farmers believe DOE jumped its own self-made deadline. In the winter of 2017-2018, while poring over 15,000 pages of legal docs, the couple found multiple exceptions to DOE’s arbitrary deadline, Fode insists.
“Me, my wife, Robin, and my son went through documents from other lawsuits with DOE, and we found that other businesses had been given four to five years to come into compliance. We were given three months, and Ecology lied repeatedly on top of that. Those other lawsuits show that DOE accepted many other transfers after the February 15 deadline. We only found this out by going through thousands of pages of legal documents. That’s a clear example of Ecology withholding pertinent information.”
“What do you think would happen in this state if Boeing or another huge corporation ran into a water issue or a regulation issue?” Robin asks. “The answer is certain: They’d be given five-plus years to get things worked out. The state would be reasonable.”
“But for a farmer? Ecology will break you and hit you with impossible fines, and then tell the public you’re an environmental outlaw,” she continues. “Make no mistake, cross DOE as a farmer or landowner, and you’ll feel the impact of very fast moving and long train. We’re not the only ones this is happening to.”
Grant County producers Wade and Teresa King agree with Robin. DOE hit the King couple with a $267,540 fine for cleaning stock ponds and allegedly damaging “cultural resources.” In all, the Kings face a potential restoration bill of $3-plus million. “We’ve been through a whole lot in our lifetimes. We’ve dealt with fires, droughts, storms, weather conditions, volatile markets, disease, birthing problems, and breakdowns. It’s all part of what we do,” says Teresa. “But I never, never thought our own government would be the biggest fight of our lives.”
In Spokane County, DOE is preparing to take the private land of an 85-year-old farmer, Bob Greiff, for irrigation violations. “I didn’t use a drop past my legal rights, but because I put it on the wrong field, I’m a criminal and the state wants to take everything I have,” he says. “It’s all about control. And power.”
In response to Greiff’s water “violations,” DOE levied a series of fines totaling $121,000 and slapped a lien on his property. “I don’t believe the people in these departments know what irrigation, yield, crops, or rotation are,” Greiff adds. “It’s a big secret that no one is supposed to say: They don’t understand what farming is.”
In both the King and Greiff cases, DOE issued press releases championing regulatory enforcement.
“It’s obvious,” Robin says. “The supposed paperwork violations that DOE uses to go after farmers are their pretend motivations, but underneath the surface, something dark is in play. They’re willing to go after family farms with every threat on the books. It’s not about correction, adjustment, or dialogue. It’s about raw power and ideology.”
The Fode’s decade-long ordeal has forced them to sell off land and equipment, and take on debt. However, the emotional toll cuts far deeper: “Ron’s had seven heart attacks since this began,” Robin says. “The length and depth of what we’ve had to walk through has come at the highest costs to our family. We wanted at least one of our kids to take over, but now that won’t happen. We want justice, not just for ourselves, but for other water users. Above all, we don’t want this to happen to another family.”
“We’re not afraid to be David to Goliath, because this is the ultimate example of the runaway power of the bureaucracy,” Fode adds. “We missed a fake paperwork deadline imposed by the state, and in return, they tried to crush our family farm.”
For more from Chris Bennett (@ChrisBennettMS or cbennett@farmjournal.com or 662-592-1106), see:
Stealing the Farm: China Continues Raid of US Agriculture by Theft and Agroterror
Corn and Cocaine: Roger Reaves and the Most Incredible Farm Story Never Told
How the Deep State Tried, and Failed, to Crush an American Farmer
Game of Horns: Iowa Poacher’s Antler Addiction Leads to Historic Bust
Ghost Cattle: $650M Ponzi Rocks Livestock Industry, Money Still Missing
Georgia Watermelon Heist Explodes into Epic Night of Pandemonium
Sisters of Farm Fraud: How 4 Siblings Fleeced USDA for $10M
When Conservation Backfires: Landowner Defeats Feds in Mindboggling Private Property Case
Cold-Busted: Frozen Deer Decoy Nabs Poachers and Cocaine in Spectacular Sting
Sticky Fingers: USDA Fraudster Steals $200M in Stunning Scam
