WATCH: Family farm’s decade-long water war with Ecology waiting on WA Supreme Court

By Carleen Johnson
The Center Square

More than nine years after a legal battle began between a Grant County family farm and the Washington Department of Ecology, the two sides are waiting to find out if the Washington State Supreme Court will take up the case.

The fight for Ron and Robin Fode and Fode Farms centers around water use on their farmland near Moses Lake, and Ecology contending the family had no right to tap into “a vulnerable aquifer.”

“It was January 2017, I applied for transferring water rights, as I’d done many times in the past, and I was waiting and waiting for an answer back, just in case there were any questions,” said Ron Fode in a Thursday interview with The Center Square. “I was being proactive, trying to get my water rights transferred.”

He explained that the hydrologist called him Feb. 14, 2017.

“He called me on their fabricated deadline and late afternoon. And their arbitrary deadline was February 15. So I hardly had any time to make any adjustments.”

Then came the cease-and-desist order for water use on the farm, setting off the near decade long battle with Ecology and the Pollution Control Hearings Board (PCHB) with Ecology leveling $618,000 in penalties against Fode Farm.

According to a press release emailed to The Center Square, the farm “produced timothy hay, alfalfa, potatoes, and other crops for domestic and international markets, but is no longer able to produce such a diversified crop due to the costs of the litigation.”

The Fode’s explained water rights within the Columbia Basin are complex with overlapping groundwater rights federal irrigation project water, and seasonal transfers, but they never attempted to skirt the rules.

“Real issue is, did the DOE provide us with technical assistance so we could do what they would like us to do? Meaningful, tactical assistance … not a phone call that says, ‘Cease and desist … turn off the water,’ ” said Robin Fode.

The couple told The Center Square they attempted to get Ecology to work with them to come into compliance, but received no technical support from the agency whatsoever, only mounting fines.

According to a June 2017 news release from the Department of Ecology emailed to The Center Square on Friday, “The Washington Department of Ecology issued cease and desist orders requiring the landowners and their lessee to stop pumping groundwater. Ignoring the orders, they continued pumping water illegally for three-and-a-half more months to water 530 acres of crops.”

Ecology’s release continued: “The Odessa aquifer has been rapidly declining since 1980. Groundwater has dropped more than 200 feet, forcing local farmers and homeowners to drill wells deeper to reach the diminishing water supply.”

Ecology at the time characterized the Fode’s continued water use as “willfully ignoring the law” and tapping into “a vulnerable aquifer without a legal right to do so.”

The Fodes deny that accusation and say Ecology refused to help them and instead went straight to targeting their livelihood with exorbitant fines.

Robin Fode said they’ve had to rely on their adult children for financial support as bank lenders are not inclined to help when you’re embroiled in a lengthy fight with the state.

“When they find out that you’re in a lawsuit with the government, they’re not going to touch you,” she said.

“They either want to win by attrition where I run out of money, or possibly die,” said Ron Fode. “I’ve had seven heart attacks [since the fight with Ecology began] plus other medical issues, and you can’t say that this stress on us is easy. So they keep taking my life and my livelihood away from me.”

The Fodes say their petition to the Washington Supreme Court is not only to seek justice and vindication but to address the Department of Ecology practices that penalize water users in the state instead of performing their duty to assist them in coming into compliance.

Attorneys for the Fodes contend the Department of Ecology lacked authority to issue penalties because they failed to provide technical assistance requested by the family and required by law.

They site Code RCW 90.03.605 AB, which focuses on voluntary compliance, where Ecology must attempt to achieve compliance through education and technical assistance (offering methods to comply within the law) before moving to stricter enforcement.

“I was trying to come into compliance because I knew there would be fines,” said Ron Fode.

The Center Square reached out to the Pollution Control Hearings Board but was told they could not provide comment.

“Unfortunately, we are unable to comment on this case as a final decision is pending,” wrote Dominga Soliz, acting director at the Environmental & Land Use Hearings office.

The couple’s son, Pierson Fode, who is an actor in Los Angeles, told The Center Square the tortuous battle has taken a toll on his parents.

“It’s brutal to see our entire legacy wiped away. You know, my life in L.A. is completely different, but it never stops being about the farm. My whole childhood was raised there, and to see it all completely taken away from us over the last 10 years is insane,” said Pierson Fode. “It’s really difficult to see your parents go through something so challenging.”

He said the family decided to go public with their battle now, using his “bit of notoriety” to bring attention to an issue that they know is bigger than just their fight.

“It’s not just about us and our water rights. This is about family farms all over America.”

This case could in fact have implications for farmers across Washington, and several groups have come alongside the Fode Farm, with some filing amicus briefs with the courts in support of the family. Those include the Washington State Farm Bureau, Columbia Snake River Irrigators Association and the Washington Water Council.

The family expects to learn next month if the Washington Supreme Court will take their case and then it could be another year or longer before those arguments take place.

“Other farmers need to hear what’s going on because this is going to set a precedent in the state of Washington,” Robin Fode said.