Across Washington state, a growing number of agricultural producers say they are facing something far more aggressive than ordinary regulatory oversight. Instead of cooperative compliance, they describe a system where enforcement actions stray from lawful procedure and escalate quickly into litigation and massive penalties.

Few cases illustrate this problem more clearly than the legal battle between Washington hay farmer Ron Fode and the Washington Department of Ecology (DOE).

For nearly a decade, Fode has been locked in brutal litigation over water use on farmland near Moses Lake in Grant County. What began as a technical water-rights question has evolved into a sprawling legal conflict involving the Department of Ecology, the Pollution Control Hearings Board (PCHB), multiple courts, and hundreds of thousands of dollars in penalties and years’ worth of attorney fees.

At the center of the dispute is a troubling question: Did Washington regulators follow the law before punishing a family farmer — or did they bypass due process entirely?

A Family Farm in the Crosshairs

Ron and Robin Fode operate Fode Farms, a multi-generation agricultural operation in eastern Washington’s Odessa Groundwater Management Subarea. The farm produces timothy hay, alfalfa, potatoes, and other crops for domestic and international markets.

Like many producers in the Columbia Basin, the Fodes farm within one of the most complex water-rights systems in the American West — a web of overlapping groundwater rights, federal irrigation project water, and seasonal transfers.

Concerned about how those rights applied to land known as the Wheeler Property, Fode attempted to resolve the issue proactively. In January 2017 he filed a seasonal water-transfer application with the Department of Ecology seeking authorization to irrigate the land legally.

According to court records, Ecology denied the application and instructed him not to irrigate certain parcels.

But Fode and neighboring landowner Michele Kiesz soon developed an alternative compliance solution: transferring valid water rights from another property and fallowing ground with more than enough water rights.

That solution — which could have resolved the issue without conflict — was never processed.

Notably, in January 2018, Ron Fode submitted essentially the same plan to the Department of Ecology and was told by DOE official Kevin Brown that it was “apples to apples” and would work, with only minor details needing to be adjusted in the irrigation plan.

According to Fode, prior issues “could have been sorted out in a couple of hours.”

Instead, he says, rather than taking accountability for earlier decisions or inconsistencies, the Department chose to escalate the matter, pursuing punitive enforcement actions.

The Law Requires Assistance Before Punishment

Under Washington law, regulators are not supposed to begin with penalties.

The Legislature created a specific enforcement sequence in RCW 90.03.605 requiring regulators to attempt voluntary compliance first.

The statute explicitly mandates that when a potential violation occurs, the Department of Ecology must first attempt voluntary compliance, provide information and technical assistance in writing, and identify one or more ways the water user can accomplish their goals legally.

Only after those steps fail may enforcement orders or penalties be imposed.

The statute was adopted in 2002 precisely because water law in the West is complex. Legislators intended regulators to help farmers resolve compliance problems before imposing penalties.

But according to Fode and his attorneys, that sequence was never followed.

Instead, they say the Department of Ecology skipped the assistance stage entirely.

“That’s Just Something We Didn’t Do”

The failure to provide technical assistance became one of the central issues in the case.

During litigation, Ecology’s regional water resources manager was asked why written technical assistance was never provided to Fode.

His response, recorded in court filings, was blunt: “That’s just something we didn’t do.”

From the Fodes’ perspective, that admission illustrates the heart of the problem.

Instead of helping them comply with the law, regulators allegedly moved directly to enforcement.

Ron Fode says that throughout 2017 he attempted repeatedly to resolve the situation.

He proposed transferring valid water rights from another property — a common compliance mechanism used throughout Washington.

But the Department of Ecology refused to process the transfer because it was submitted after an arbitrary internal February 15 “office deadline.”

The problem: that deadline was not part of any statute or formally adopted rule.

An Informal Deadline With the Force of Law

The February 15 deadline became a critical issue in the litigation.

Ecology argued it could refuse to process seasonal water-transfer applications submitted after that date.

But testimony revealed that the deadline was not required by law and had never been adopted through formal rule-making procedures.

Despite this, the agency relied on the deadline to reject Fode’s and Kiesz’s proposed compliance solution.

In effect, critics argue, the agency used an informal internal policy to eliminate a legal pathway that could have easily resolved the dispute.

Fode’s attorneys argue this violated both the Administrative Procedure Act and the statutory enforcement sequence requiring technical assistance.

Enforcement First, Questions Later

Instead of simply working through the transfer request, the Department of Ecology escalated the matter.

In June 2017, the agency issued cease-and-desist orders directing Fode and his landlords to stop irrigating the Wheeler Property.

Fode appealed the cease-and-desist orders with the expectation that a compliance resolution could be achieved and that Ecology would seriously consider the proposed seasonal transfers.

At Ecology’s request, the PCHB dismissed Fode’s appeal as untimely. But in 2022, the Washington Court of Appeals ruled the appeal had in fact been filed on time and ordered further proceedings in the case. Nevertheless, Ecology’s motion and the PCHB’s erroneous ruling led Ecology to close the door on any discussions with Fode to irrigate in compliance with the law.

When irrigation continued after the cease-and desist-orders, Ecology began assessing daily penalties.

Ecology ultimately issued three separate penalty orders for irrigation on three parcels, totaling $618,000.

After a 2019 hearing, the Pollution Control Hearings Board reduced the total penalty to $260,000 but still upheld the violations, ruling that Fode was legally barred from raising the technical assistance defense because of his untimely appeal of the cease-and-desist orders.

Even the reduced penalty represented a devastating blow to a family farming operation.

The Cost of Fighting the State

The legal consequences went far beyond fines.

According to Ron Fode, defending against the enforcement action required years of litigation, hundreds of thousands of dollars in legal expenses, and tens of thousands of pages of records.

The financial impact has been severe.

During interviews, Fode explained that banks eventually stopped lending to the operation once it became entangled in litigation with the state.

Without financing, the farm could no longer operate normally.

Land had to be leased out or sold, and plans to pass the farm to the next generation were derailed.

“I’m basically paying the government to take me to court,” Fode said. “How is that justice?”

A Procedural Maze

The case has moved through an extraordinary series of legal venues including the Pollution Control Hearings Board, Grant County Superior Court, and the Washington Court of Appeals.

After the Court of Appeals ruled in Fode’s favor in the first appeal, restoring his technical assistance defense, a remand hearing was held before the PCHB in 2023. However, the PCHB deferred to Ecology’s interpretation of the statutes and again upheld the penalties.

In December 2025, the Court of Appeals affirmed that decision.

Fode has now petitioned the Washington Supreme Court for review, and multiple organizations are supporting his petition with amicus (“friend of the court”) briefs.,

Due Process in Question

For critics of the enforcement action, the legal battle raises deeper constitutional concerns.

The central question is not simply whether Fode violated water regulations.

Instead, the question is whether regulators followed the law before punishing him.

The statute requires regulators to provide written technical assistance identifying legal ways a water user can accomplish their goals before penalties are issued.

But in this case:

• written technical assistance was never provided directly to Fode

• a potential compliance solution was rejected due to an informal policy that was never adopted as a rule

• penalties were issued even though Fode fallowed other land with transferable water rights to avoid any harm to the Odessa Aquifer

From Fode’s perspective, the process was backwards.

Instead of assist first, enforce later, the agency allegedly adopted a punish first, justify later approach.

A Test Case for Agricultural Rights

The Washington Supreme Court has not yet decided whether it will review the case.

If it does, the outcome could have major implications.

At stake is not only the future of Fode Farms, but the interpretation of a key statute governing water-law enforcement across the state.

If regulators can bypass statutory requirements for assistance before penalties, critics argue, the balance between enforcement and beneficial use of water envisioned by the Legislature could collapse.

For Washington’s farmers — already navigating one of the most complicated water regulatory systems in the country — that balance may determine whether family agriculture remains viable.