The opinion
IN THE
Court of Appeals of Indiana
In re the Establishment of the Lake of the Woods of Marshall
County Conservancy District, FILED
Appellants-Petitioners Feb 19 2026, 9:00 am
CLERK
Indiana Supreme Court
v. Court of Appeals
and Tax Court
Mary Behrens, on behalf of the Remonstrators Against
Establishment of the Conservancy District,
Appellee-Respondent
February 19, 2026
Court of Appeals Case No.
25A-MI-1889
Appeal from the Marshall Superior Court
The Honorable Matthew E. Sarber, Judge
Trial Court Cause No.
50D03-2308-MI-79
Opinion by Judge Bailey
Court of Appeals of Indiana | Opinion 25A-MI-1889 | February 19, 2026 Page 1 of 14
Judges Vaidik and Scheele concur.
Bailey, Judge.
Case Summary
[1] Numerous petitioners (“the Petitioners”) filed a petition to establish the Lake of
the Woods of Marshall County Conservancy District (“the District”). Mary
Behrens, on behalf of those opposed to the District (“the Remonstrators”), filed
a petition to dismiss the Petitioners’ petition. The trial court granted the
Remonstrators’ petition and dismissed the Petitioners’ petition. The Petitioners
now appeal and present four issues for our review, which we consolidate and
restate as whether the court clearly erred when it dismissed the petition to
establish the District. We affirm.
Facts and Procedural History
[2] On August 11, 2023, the Petitioners, who are freeholders within Marshall
County, filed a petition for the creation of the District (“the District Petition”).
The Petitioners asserted that the territory to be included in the District would
include “[a]ny and all parcels of real estate having frontage on Lake of the
Woods and/or the channels associated therewith.” Appellants’ App. Vol. 2 at
30. The Petitioners also stated that the District would be established for the
purposes of “improving and maintaining the quality of Lake of the Woods
through strategies designed to enhance and improve water quality, improving
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drainage, [and] flood prevention and control[.]” Id. The District Petition
included twelve counterparts, each of which included signatures of the
Petitioners who supported the establishment of the District and either their
addresses or parcel numbers.
[3] On October 11, the Marshall County Auditor (“the Auditor”) submitted an
affidavit in which she stated that the District Petition contained 152 names of
“freeholders within the boundaries of the proposed” District, that there were
270 freeholders within the boundary, and that the signatures obtained by the
Petitioners represented 56.3% of the freeholders within the proposed boundary.
Id. at 118-19. Following an initial hearing on the District Petition, the court
found that the Auditor’s report “serve[d] as prima facie evidence” that the
Petitioners had acquired the minimum number of signatures needed to proceed.
Id. at 180. Then, finding that the Petitioners had satisfied all statutory notice
requirements, the court referred the District Petition to the Natural Resources
Commission of the Department of Natural Resources (“the Commission”).
[4] On July 24, 2024, the Commission submitted its report. At the conclusion of
the report, the Commission “recommend[ed] the establishment of the proposed
[District] upon amendment of the” District Petition to include an additional
stated purpose and the inclusion of “a detailed map of the proposed district that
clearly outlines the complete boundaries of the district, including the lake itself
and/or the channels associated therewith and all parcels of real estate having
frontage on [the lake] and/or the channels associated therewith, proving the
contiguous nature of the district.” Id. at 202.
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[5] On August 6, Behrens filed a notice with the court that the Remonstrators
intended to file a petition against the formation of the District (“the Opposition
Petition”) and that there were 197 signatures in support of the Opposition
Petition. The same day, the Remonstrators submitted the Opposition Petition,
which included a large number of counterparts containing the names and
signatures of freeholders who were against the proposed District as well as their
addresses or parcel numbers.
[6] On September 18, the Auditor submitted a letter to the court stating that there
were “[q]uestionable” signatures on the Opposition Petition. Appellants’ App.
Vol. 4 at 30. Specifically, she identified fourteen signatures that were “not of the
deeded owner,” were for properties that were owned by a trust or LLC “with no
paperwork to verify if the person signing” is part of the trust or LLC, or were
“duplicate signatures.” Id. (bold removed). The Auditor also identified two
signatures from the owners of parcels “that are not on the lake.” Id. at 31 (bold
removed). Behrens responded to the Auditor’s letter and provided
documentation to show that seven of the challenged signatures were
appropriate. She also included five additional signatures in support of the
Opposition Petition.
[7] On November 14, the Petitioners filed an amended District Petition, with
supporting exhibits, including the following map:
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Id. at 83. In addition, they filed a response to the Opposition Petition and
alleged that the Opposition Petition lacked enough signatures and therefore
“fail[ed] to meet the necessary thresholds to discharge or dismiss the Petition to
Establish the Conservancy District.” Id. at 89. The Petitioners attached
documents that contained signatures of individuals who “revoke[d]” their
signatures on the Opposition Petition. Id. at 91.
[8] Behrens then filed a request for an Auditor’s Report stating that she had
submitted evidence to support seven of the sixteen questioned signatures and
added five more signatures in opposition to the District. She further stated that,
while the Petitioners submitted twenty signatures of people who purportedly
revoked their opposition, “at least five of these people never were included on
the opposition to the” District, many of the other signatures “are illegible” and
there are “at least two duplicates.” Id. at 99. And Behrens asserted that she had
submitted “far more” than the 138 signatures needed for the District Petition to
be dismissed and asked the Auditor for an “accounting of the signatures[.]” Id.
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The court issued an order requiring the Auditor to “review their records and
update their affidavit[.]” Id. at 111. The Auditor “referenced” and “review[ed]”
a spreadsheet by an individual named Michael Nate and “discuss[ed]” the
spreadsheet with him, and the Auditor “agree[d] with the numbers he has.” Id.
at 124. And she stated that, even if she were to remove certain names “from the
list of those in favor” of the District Petition it would not reduce the number to
under 50%.
[9] On January 22, 2025, the court held a hearing at which the parties presented
oral argument. At the hearing, the parties agreed that the court needed “to
make the requisite finding of whether [the Opposition Petition] bears the
sufficient number of signatures or not[.]” Tr. Vol. 2 at 6. They further agreed
that, if the Opposition Petition contained enough signatures, the court would be
required to dismiss the District Petition but that, if it did not, then the
“Conservancy District would be approved.” Id. The court then ordered the
parties to submit briefs consisting of their arguments and “an accounting of the
signatures on the petition against establishment of the [District].” Appellants’
App. Vol. 4 at 126.
[10] In Behrens’ brief in support of the Opposition Petition, she alleged that there
were 270 freeholders in the proposed district and that at least “140 have signed
the Opposition,” which equated to 51.85%. Id. at 128 (bold removed). She
further asserted that the spreadsheet on which the Auditor had based her
updated report “include[d] properties not having frontage” on the lake or
channels “and exclude[d] properties with frontage” on the lake or channels. Id.
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at 134 (emphases in original). And she again argued that there were various
“problems” with the “alleged revocations” submitted by the Petitioners. Id. at
140.
[11] The Petitioners responded and asserted that the Remonstrators had “fail[ed] to
establish sufficient valid signatures.” Appellants’ App. Vol 8 at 44 (bold
removed). In particular, the Petitioners asserted that several signatures did “not
qualify by the plain language of the statute,” and that, if those were removed,
then the Remonstrators had only 106 signatures in opposition, which placed the
Remonstrators “thirty-two (32) signatures short” of the 51% that was necessary
to defeat the creation of the District. Id. at 46-47.
[12] On June 30, the trial court issued its findings of fact and conclusions thereon. In
particular, the court found that “Petitioners’ evidence does not sufficiently
establish or support the boundaries of [the District.]” Appellants’ App. Vol. 2 at
21. The court further found that the Petitioners’ spreadsheets “do not establish
that the named properties are ‘parcels of real estate having frontage on Lake of
the Woods and/or the channels associated therewith’” and that “[r]eferences on
the spreadsheet to ‘on water,’ ‘off water,’ or ‘channel’ are insufficient to
establish the boundaries[.]” Id. Rather, the court found that “Remonstrators’
evidence demonstrates certain properties . . . are not included in the definition
of [the District], nor can readily be identified on the non-descript map of [the]
Petitioner[s] for inclusion in [the District] definition.” Id. And the court found
that the Remonstrators had secured 140 signatures, which represented 51.85%
of the freeholders in the proposed District. Based on those findings, the court
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concluded that the Remonstrators had met their burden to demonstrate that
they had secured enough signatures against the proposed District and dismissed
the District Petition. This appeal ensued.
Discussion and Decision
[13] The Petitioners appeal the trial court’s order dismissing the District Petition. In
its order, the trial court entered findings of fact and conclusions thereon. On
appeal, those findings and conclusions “will only be set aside if they are clearly
erroneous.” Crist v. South-West Lake Maxinkuckee Conservancy Dist. (In re the
Petition for the Creation of South-West Lake Maxinkuckee Conservancy Dist.), 875
N.E.2d 222, 234 (Ind. Ct. App. 2007), trans. denied. A finding or conclusion is
not clearly erroneous unless the record contains no facts or inferences
supporting it. Id. 1 Further, in conducting our review, “we cannot reweigh the
evidence[.]” Dallas v. Cessna, 968 N.E.2d 291, 296 (Ind. Ct. App. 2012). Rather,
we will reverse the judgment of the trial court only upon a showing of clear
error, which is “‘that which leave us with a definite and firm conviction that a
mistake has been made.’” Masters v. Masters, 43 N.E.3d 570, 575 (Ind. 2015)
1
In their principal brief on appeal, the Petitioners contend that the Opposition Petition was a motion to
dismiss under Indiana Trial Rule 12(B), which the court then treated as a motion for summary judgment by
considering matters outside the pleadings. As such, the Petitioners contend that we should review this appeal
under the standard for an appeal from the grant of summary judgment. See Appellants’ Br. at 24-26.
However, we agree with the Remonstrators that there is nothing in the relevant statutes—Indiana Code
Chapter 14-33-2—“to suggest that a petition against the establishment of a district . . . should be treated as a
motion to dismiss under” Trial Rule 12. Appellee’s Br. at 28. And the Petitioners do not argue otherwise in
their Reply Brief.
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(quoting Egly v. Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235
(Ind. 1992)).
[14] On appeal, the Petitioners specifically contend that the trial court erred when it
dismissed the District Petition based on a finding that the Remonstrators had
met their burden with regard to the Opposition Petition. Petitions against the
establishment of a conservancy district, like the Opposition Petition, are
governed by Indiana Code Section 14-33-2-15. That statute provides, in relevant
part, that, if the court “finds a petition against the establishment of a district
contains the signatures of . . . at least fifty-one percent (51%) of the freeholders
in the proposed district[,]” then the court “shall dismiss the petition for the
establishment of the district[.]” Ind. Code § 14-33-2-15(b).
[15] The Petitioners contend that the Remonstrators “still did not carry the burden
to establish the [Opposition P]etition had 51% of the proposed freeholders.”
Appellants’ Br. at 28. Indiana Code Section 14-33-2-3 provides:
To determine the number of freeholds in the proposed district
and the number or proportion of freeholders owning land in the
district qualified to sign a petition for establishment, the
following apply:
(1) Only one (1) freeholder’s signature may be counted for
any one (1) freehold. If a freehold is held in joint title, only
one (1) freeholder’s signature may be counted and it may
be the signature of any one (1) of the freeholders owning
the freehold in joint title. If a given freeholder qualifies as
set forth in this section for at least two (2) freeholds, the
freeholder’s signature shall be counted for each freehold.
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(2) One (1) or more tracts of land owned solely by only
one (1) freeholder constitute one (1) freehold.
(3) One (1) or more tracts of land owned in joint title by at
least two (2) identical freeholders constitute one (1)
freehold. However, if one (1) of the freeholders owning the
freehold in joint title is a different or additional person,
each freehold in joint title among nonidentical persons
constitutes a separate and additional freehold.
(4) Subject to subdivisions (1), (2), and (3), if:
(A) a petition for the establishment of a district is
filed by a municipality by ordinance adopted by the
municipality’s legislative body; or
(B) the municipality by ordinance has joined in a
petition for inclusion in whole or part in the
proposed district;
each freeholder in the area of the municipality that is in
the proposed district is counted as a signatory to the
petition. However, if a freeholder in the area of the
municipality that is in the proposed district, after the filing
of the petition for the establishment of the district, files a
petition against the establishment of the proposed district,
the number of freeholders considered and counted as
signatories to the petition must be reduced by the number
of freeholders in the area of the city that is in the proposed
district filing a petition against the establishment of the
district.
(5) Private corporations owning land in the proposed
district may sign the petition by any officer authorized by
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the corporation. The officer’s signature is prima facie
evidence of the officer’s authorization to sign the petition.
[16] Here, the trial court determined that the total number of freeholders in the
proposed District was 270. Thus, in order for the Remonstrators to meet their
burden under Indiana Code Section 14-33-2-15(b) and obtain 51% of the
signatures, the Opposition Petition needed to contain at least 138 signatures.
The Petitioners argue that the Remonstrators failed to meet that burden.
[17] Specifically, the Petitioners first assert that their District Petition contained 152
signatures and that 22 people subsequently “‘switched’ petitions” to become in
favor of the proposed District, which resulted in 174 signatures in favor of the
District Petition. Appellants’ Br. at 30. And they acknowledge that two people
“withdrew their names from the list of those in favor.” Id. As such, the
Petitioners contend that the “Remonstrators were limited at that point to at
most 98 signatures (270 - 174 = 96 + 2 = 98) of the freeholders.” Id.
[18] That argument misses the mark. Petitioners start their calculation based on the
number of signatures in favor of the District Petition and work backwards from
there. But the number of signatures on the District Petition is irrelevant. 2
Instead, the appropriate question is whether the Opposition Petition had at least
138 signatures. See I.C. § 14-33-2-15(b). Thus, the only relevant documents are
2
Indeed, it is clear that freeholders changed sides during the proceedings, making the number of signatures
on the original District Petition less reliable.
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the Opposition Petition and all of its counterparts and any subsequent
document either adding signatures thereto or removing signatures therefrom.
[19] Still, Petitioners contend that the Remonstrators did not obtain the requisite
number of signatures because the Remonstrators added certain properties they
believed should be included and removed certain properties they believed
should be excluded, which improperly “restrict[ed] and expand[ed] the
boundaries of the district to enlarge the number of freeholders[.]” Appellants’
Br. at 31. And Petitioners contend that, despite that addition and subtraction of
properties, they did not change the overall number of freeholders from 270.
Moreover, the Petitioners maintain that the Remonstrators failed to identify
“each freeholder within the new boundary that is opposed to the creation of”
the District. Id. at 37.
[20] During the underlying proceedings, the Remonstrators filed the Opposition
Petition, which contained well over one hundred counterparts. 3 And each of
those counterparts contained multiple signatures and addresses/parcel
numbers. In addition, both sides submitted documents to indicate that
freeholders had changed their positions, and each party made accusations that
the other party had wrongfully included or excluded properties or that the other
party had wrongly counted signatures.
3
The Opposition Petition contained counterparts numbered 1-131, 201, and 202, as well as unnumbered
counterparts.
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[21] However, we are unable to discern which addresses are or are not included in
the District to ascertain whether the Petitioners are correct in stating that the
Remonstrators expanded or restricted the District’s boundaries. Indeed, the
map provided by the Petitioners outlining the District is vague at best and
provides no details regarding addresses or parcel numbers. As such, we have no
way of knowing whether a signature for the Opposition Petition—or for the
District Petition for that matter—is a proper signature of a freeholder within the
District. Without more, all we have are hundreds of pages of documents with
hundreds of signatures of people that may or may not be of appropriate
freeholders.
[22] The trial court, as factfinder, parsed all the data, looked at the boundaries of the
District, determined which addresses fell within or outside that boundary,
counted the number of signatures in opposition, concluded which of those
signatures were proper, and determined that the Remonstrators had obtained
140 signatures, which was two more than what they needed for the District
Petition to be dismissed. Stated differently, the court considered the evidence
presented by both sides but gave more weight to the Remonstrators’ evidence
than that of the Petitioners. Based upon that determination by the trial court, it
found that the documented signatures provided by the Remonstrators exceeded
the statutory minimum of 51%, and from our review, we cannot say that the
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court clearly erred when it found in favor of the Remonstrators and dismissed
the District Petition. 4
Conclusion
[23] The trial court’s findings are supported by the evidence. As such, the court did
not clearly err when it determined that the Opposition Petition contained
enough signatures and dismissed the District Petition. We therefore affirm the
trial court.
[24] Affirmed.
Vaidik, J., and Scheele, J., concur.
ATTORNEY FOR APPELLANT
Colby A. Barkes
Blachly, Tabor, Bozik & Hartman, LLC
Valparaiso, Indiana
ATTORNEYS FOR APPELLEE MARY BEHRENS
Todd J. Janzen
Brianna Schroeder
Janzen Schroeder Agricultural Law LLC
Indianapolis, Indiana
4
Because we affirm the dismissal of the District Petition based on the number of signatures, we need not
address the Petitioners’ arguments regarding the Remonstrators’ ability to challenge the sufficiency of the
pleadings, the boundaries of the District, or the sufficiency of compliance with the Commission.
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