We’ve been hearing a lot since the passing of Justice Antonin Scalia about how the country isn’t being served by an eight-member, divided Supreme Court.

Well, the surviving brethren recently served the country well, issuing an unanimous opinion giving property owners the right to challenge in court regulatory determinations that their properties are subject to the Clean Water Act.

In U.S. Army Corps of Engineers v. Hawkes Co., the question of judicial review rests on whether a determination by the U.S. Army Corps of Engineers that it has jurisdiction over property under the Clean Water Act is a final agency action subject to challenge, or merely an opinion a property owner can consider and disregard, albeit at future peril.

The court rightly found that such a determination is a statement of the government’s intention to take action if disobeyed and is subject to judicial review.

Hawkes Co. planned to mine peat moss on wetland property it owned in Minnesota. After numerous meetings with the company and visits to the site, the Corps concluded that there was a significant nexus between the site and the Red River of the North, waters of the U.S. as defined by the Clean Water Act, some 120 miles away.

It made a jurisdictional determination that a permit would be required before the company could move forward.

According to the Corps, this left Hawkes with only three options. It could abandon the project. It could perform the expensive and time-consuming environmental impact studies and apply for a permit. It could ignore the determination and proceed with the project and defend itself if (or when) the Environmental Protection Agency — the muscle in these cases — prosecuted.

What it could not do is contest the determination in court. According to the Corps, its jurisdictional determination was not a final government action under the Administrative Procedures Act because it neither compelled Hawkes to do anything, nor restricted its actions.

That contorts both logic and the language. No one in their right mind would go forward with a project without a permit and face the possibility of ruinous fines and legal expenses. No one would go to the trouble and expense of getting a permit and then challenge the thing in court.

Without the right to judicial review, landowners really had no choice but to forget the project or submit.

That’s how the court saw it. Writing for the court, Chief Justice John Roberts said landowners “need not assume such risks while waiting for EPA to ‘drop the hammer’ in order to have their day in court.”

The Corps must now be ready to demonstrate a solid scientific basis that private property has a “significant nexus” with waterways protected by the Clean Water Act before it can require a permit.

The burden of proof must always rest with the regulator. Landowners should not evade justified regulation but must be able to thwart the tyranny of being forced to submit to the arbitrary will of the bureaucracy.