In 1984, Ron Fodé returned to his family’s farm in Grant County, Washington, to take over operations for his parents. Forty years later, he’s still there. He and his wife, Robin, raised their four children on the land, expanding Fodé Farms into a 4,000-acre operation at its height, growing crops, caring for livestock, and even rescuing animals in need.
That legacy is now at risk because the Washington State Department of Ecology ignored the legal limits on its own enforcement authority and penalized the Fodés—without giving them a fair chance to comply.
When Ron learned that he did not possess adequate water rights to irrigate on lands he was leasing to grow potatoes, he looked for a lawful path to compliance. One existed: a seasonal water rights transfer, a standard mechanism under Washington law that allows a farmer to temporarily adjust water use to stay within legal limits while keeping crops irrigated.
Ron tried to pursue this option, but Ecology refused to even accept the application, citing an internal “office deadline” of February 15, after which the agency would not process seasonal transfer applications. That cutoff had never been published, never put out for public comment, and never adopted as a formal rule. Ron had no way to know it existed until it was used to close the door on him. With his only compliance pathway blocked, Ecology imposed monetary penalties.
Recognizing that water rights are complicated, the Washington State Legislature enacted a law that requires the Department of Ecology to provide water users with “technical assistance” whenever possible—and which prohibits the agency from imposing penalties without trying to help water users come into compliance. The agency can move on to enforcement only after exhausting these pathways to assistance.
These were mandatory prerequisites, not suggestions. But Ecology acted as though it had satisfied its legal obligation to provide Washingtonians with “technical assistance” by simply telling Ron he was in violation and had to stop. Meanwhile, the February 15 deadline that eliminated Ron’s only compliance pathway had never been published or put through any public process. Under Washington’s Administrative Procedure Act, however, a policy that determines whether a farmer can pursue a compliance pathway must be adopted through rulemaking—not quietly imposed through an internal office memo.
After the Washington Court of Appeals sided with Ecology, Ron Fodé filed a petition for review with the Washington Supreme Court. The court agreed to hear his case and Pacific Legal Foundation stepped in to represent him free of charge.
The stakes extend well beyond Fodé Farms. As PLF research has documented, agencies across the country routinely use unpublished internal policies to impose binding obligations on private parties—all while avoiding the notice, comment, and publication requirements the law demands. When agencies can ignore mandatory statutory requirements and enforce unpublished internal policies without consequence, no one subject to government enforcement is safe.
What’s At Stake?
- When the legislature tells an agency what it must do before penalizing someone, those requirements are binding—not suggestions the agency can ignore when they become inconvenient.
- A government agency cannot enforce a secret internal policy as though it were law. Rules that affect people’s legal rights must be published and open to public comment before they can be enforced.
