Goff, J.
State and federal courts have long held that a constitutional taking may occur from government-induced flooding. Analysis of a takings claim under these circumstances depends on whether the flooding is permanent or temporary in nature. Whereas a permanent flooding constitutes a per se taking, liability for a temporary flooding hangs on several case-specific factors. Because the intermittent flooding of the landowners’ property here is inevitably recurring, we hold that the trial court properly analyzed the claim as a permanent taking. But the trial court’s findings left unresolved whether the flooding’s interference was substantial enough to create a taking and the court should have considered the landowners’ property lying within the drainage easement. For those reasons, we vacate the trial court’s order and remand for further factual findings consistent with this opinion and, if necessary, a final determination of damages.
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The question here focuses on the first of these factors—whether and to what extent a taking has occurred.
The Birges argue (I) that the trial court properly determined that the Defendants’ actions resulted in a permanent physical invasion. The Court of Appeals, they insist, misconstrued applicable federal precedent—and misapplied Arkansas Game—by concluding that the flooding of their Property amounted only to a temporary physical invasion. The Birges also argue (II) that, by limiting the flooding’s impact to those of the Property lying beyond the drainage easement, the Court of Appeals improperly expanded the Defendants’ statutory immunity from a takings claim.
We address both these arguments in turn.
I. The trial court properly analyzed the government-induced flooding as a permanent physical invasion.
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Based on this precedent, we analyze a flooding-related takings claim as follows: (1) if the flooding is continuous or “intermittent but inevit portions ably recurring,” and the invasion is “substantial,” then it results in a per se taking; (2) if, on the other hand, the flooding is temporary or of “finite duration,” then the Arkansas Game factors apply.
The Birges argue that Cress is controlling. [Footnote omitted.] Defendants, by contrast, insist that this case “is more like an intermittent, temporary flooding issue that should be analyzed using the Arkansas Game factors.” Oral Argument at 17:50–18:00; see also County’s Resp. in Opp. to Trans. at 11 (arguing that the “trial court erred by failing to expressly consider and balance” the Arkansas Game factors).
We agree with the Birges.
Unlike in Arkansas Game, where the “recurrent floodings” were of “finite duration” (lasting from 1993 to 2000), 568 U.S. at 27 (emphasis added), the floodings here are repetitive and of indefinite duration—i.e., they amount to a “permanent condition,” see Cress, 243 U.S. at 327. As the trial court expressly found, and as the record evidence supports, the drain reconstruction project has resulted in “repeated flooding events” on the Birges’ Property due to increased pressurization at the Transfer Point during “every heavy rainfall.” App. Vol. 5, p. 59; see Tr. Vol. 2, p. 56 (expert testifying to the same effect). In other words, the flooding here amounts to a permanent physical invasion by way of “intermittent but inevitably recurring overflows.” See Cress, 243 U.S. at 328 (emphasis added). Indeed, so long as the Property sustains “heavy rainfall” (or unless and until the County takes the necessary corrective measures), the flooding will persist indefinitely. This type of physical appropriation reflects the “clearest sort of taking,” which we assess by “using a simple, per se rule: The government must pay for what it takes.” See Cedar Point Nursery v. Hassid, 141 S.Ct. 2063, 2071 (2021) (internal quotation marks and citations omitted).
Still, a taking occurs only when “the damage is substantial.” Cress, 243 U.S. at 328 (emphasis added). Here, the Birges presented evidence of the flooding’s interference with their use of the Property. Brian Shelby, the farmer who rents the Birges’ Property, testified that the Property, to his recollection, “[n]ever pool[ed] water” before the reconstruction project. Tr. Vol. 2, p. 31. But since the project’s completion, he attested, the Property is “almost always” wet, creating “root issues” for the crops and preventing him in some years from farming it “at all without getting equipment stuck.” Id. at 31–32. The constant saturation of the Property, he added, delays the annual planting season by up to a month, preventing him from ever attaining the “maximum yield.” Id. at 32.
Whether this (and other) evidence shows an interference substantial enough to create a taking was a question of fact for the factfinder. See Mendenhall v. City of Indianapolis, 717 N.E.2d 1218, 1227 (Ind. Ct. App. 1999). But the trial court here found only that the flooding rendered farming on the Property “more difficult” than before. App. Vol. 5, p. 60. We thus remand for further development of the trial court’s factual findings to support its determination whether the flooding amounted to a permanent physical invasion.
We now turn our attention to the geographic scope of the Birges’ takings claim.
II. The statutory right of entry does not exempt a county from liability for a takings claim.
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The trial court here expressly limited its findings to the Birges’ Property “outside of the drainage easement.”…
Defendants, on the other hand, insist that Indiana courts interpreting the statute “have routinely held that this property right constitutes an easement.” County’s Resp. Opp. to Trans. at 15; see Mattingly v. Warrick Cnty. Drainage Bd., 743 N.E.2d 1245, 1249 (Ind. Ct. App. 2001) (“A plain reading of the statute shows that the legislature intended to create both a seventy-five foot right-of-entry and a seventy-five foot right-of-way, or easement.”); Johnson v. Kosciusko Cnty. Drainage Bd., 594 N.E.2d 798, 804 (Ind. Ct. App. 1992) (concluding that “state law grants the county an easement of up to 75 feet on either side of the drain”). And because it holds an interest in the Property here “by way of this statutory easement,” the County argues that no taking may arise based on changes to the Property lying within the easement. County’s Resp. Opp. to Trans. at 7, 17.
Again, we agree with the Birges.
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Whether we refer to the County’s interest in the Property as an “easement” or something else, the statute here grants the County a “right of entry over and upon land” lying within seventy-five feet of a regulated drain for the limited purpose of the drain’s “operation” or “reconstruction or maintenance.”…
Beyond these limited restrictions, the statute permits the landowner to “use the land in any manner consistent with this chapter and the proper operation of the drain,” including the planting of crops. Id. (emphasis added). And, while exempting the County from liability for any damage done to “[c]rops grown on a right-of-way” when “necessary in the reconstruction or maintenance of the drain,” the statute expressly directs the County, when “exercising the right” of entry, and “to the extent possible,” to “use due care to avoid damage” to the “crops and approved structures inside the right-of-way.” I.C. § 36-9-27-33(c), (d) (emphasis added). Moreover, when exercising its right of entry, the county must notify the property owner, either orally or in writing, of the “purpose for the entry.” I.C. § 36-9-27-33(c).
The “intrusions contemplated” by this statute, Indiana courts have opined, are merely “incidental,” “minimal and infrequent.” Johnson, 594 N.E.2d at 804 (distinguishing such intrusions from takings, which involve “actual interference with, or disturbance of property rights, which are not merely consequential, or incidental injuries to property or property rights”). While such “incidental” damage to crops still permits the farmer to “use the land” in a “manner consistent with” Indiana drainage law, see I.C. § 36-9-27-33(d), the complete destruction of crops from intermittent yet inevitably recurring (i.e., permanent) flooding does not. Interpreting the statute as immunizing the county from liability for any loss occurring within the easement would deprive the Birges of their right to farm the land and to realize its fullest economic potential. Cf. Johnson, 594 N.E.2d at 804–05 (holding that the drain’s conversion to a “regulated drain” resulted in “no additional taking of the property” where landowners “presented no evidence that they [would] be unable to use the property” and “even acknowledge[d] that they may plant crops” within the easement).
In short, the right of entry under Indiana Code section 36-9-27-33 does not exempt the county from liability for a takings claim.
Conclusion
For the reasons above, we hold that the Birges’ takings claim is properly analyzed as a per se permanent taking—one encompassing that portion of the Property lying both within and outside of the county’s drainage easement. But whether the flooding’s interference is substantial enough to create a taking is a question left unresolved by the trial court’s findings. We thus vacate the trial court’s order and remand (1) for further factual findings on the issue of whether the flooding here amounted to a substantial permanent physical invasion of the Property (including that portion lying within the drainage easement), and (2) for a final determination of damages (if any), the assessment of which should include consideration of the flooding’s effect on the Birges’ use of the Property within the statutory right of way.
Rush, C.J., and Massa, Slaughter, and Molter, JJ., concur.