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In 2017, family farmer Ron Fode tried to ensure that he was fully compliant with his water rights to irrigate several hay pastures and a potato crop near Mose Lake, Washington.  What ensued was an eight-year legal Odyssey in which the Department of Ecology avoided legislative directives to provide technical assistance to water users before issuing enforcement orders and penalties. Ecology ignored Mr. Fode’s request to transfer other valid water rights after informing him that his own family’s  groundwater rights in the Odessa Aquifer could no longer be used. Fode appealed Ecology’s illegal enforcement order, but Ecology nevertheless levied $618,000 in penalties against Mr. Fode while his appeal was still pending.  I appealed the penalties on behalf of Mr. Fode, raising multiple arguments that Ecology exceeded their statutory authority, violated rule-making requirements, and acted arbitrarily and capriciously. The PCHB lowered the penalties to $230,000 based on the absence of proof of violations,  but upheld Ecology’s refusal to process Mr. Fode’s request for a seasonal water transfer because it was too late, by virtue of a policy Ecology never adopted by rule.

The Washington Supreme Court recently granted the Petition for Review I drafted for Mr. Fode after Division 3 of the Court of Appeals upheld the PCHB decision. Oral argument is scheduled for October 1, 2026. The key issues involve the interpretation of Ecology’s technical assistance obligations under RCW 90.03.605(1) before it can issue civil penalties, and whether Ecology’s office deadline for seasonal transfers was an illegal rule under the Administrative Procedure Act.

Pacific Legal Foundation has entered the case as co-counsel for Mr. Fode. Several other parties filed amicus memos in support of the petition for review, including the National Federation of Independent Business, Pacific Legal Foundation, and the Washinton Water Utility Council.

Contact Tom Pors for more information and to support Mr. Fode’s case against a government agency that is more interested in expanding their legal authority than following the Legislature’s instruction to help water users comply with the Water Code while accomplishing their objectives.

On January 21, 2026, Whatcom County Superior Court Judge David Freeman denied requests from local farming groups and the City of Sumas, who proposed changes to the boundary of the WRIA 1 water rights adjudication case. Judge Freeman ruled that the court shouldn’t consider such issues until after the June 1, 2027 deadline for water users to file their claims. That means the SUMAS OUT group and other moving parties are being forced to hire attorneys and experts to file their water right claims before they can argue that they shouldn’t have to file those claims due to improper adjudication boundaries and other jurisdictional issues.

“It appears Judge Freeman is far more concerned with the bureaucratic process of an adjudication than the wellbeing of farms and rural residents bearing huge costs as a result of being required to prepare for this court case,” said Fred Likkel, Executive Director of Whatcom Family Farmers.

While each water user’s costs vary widely, estimates place the expense of preparing an individual water claim to be filed anywhere from $1,500 to over $10,000 per water right. With the court estimating the number of potential claims at 30,000, this process represents a total cost to the local rural community potentially higher than a quarter-billion dollars, just to prepare for a lawsuit that could last decades.

SUMAS OUT is a coalition of the City of Sumas and several farmers in the Sumas Basin, which flows north to Canada and the Fraser River. SUMAS OUT, represented by attorney Thomas Pors, was seeking leave to file its motion to exclude the Sumas River basin from the boundary of the adjudication, and to extend the claim filing deadline, but Judge Freeman denied their motion.

SUPPORT SUMAS OUT!

I represent SUMAS OUT, a coalition of water-right holders in the Sumas River basin in Whatcom County, Washington. These farmers, families, local businesses, and the City of Sumas are taking legal action to remove the Sumas Basin from the WRIA 1 (Nooksack) water rights adjudication. Read the attached SUMAS OUT fact sheet to discover why the Sumas Basin should be excluded from the boundary of the WRIA 1/Nookack River Adjudication, and what you can do to support their effort.