Readers may recognize the words in the title of this blog post as lyrics from Gordon Lightfoot’s melancholy ballad, The Wreck of the Edmund Fitzgerald. If you’re interested, it can be heard on any given school morning in my minivan, where it vies with The Devil Went Down to Georgia for “most requested song.” Story songs are in right now in the Proctor household. Recommendations most welcome.

 I might have titled this post, “And farther below, Lake Ontario takes in what [pilots the Saint Lawrence Seaway Pilots Association will] send her.” It does not quite have the same ring, but it captures Captain Matthew Hight’s complaint in the D.C. Circuit’s sole administrative law decision from last week: Hight v. United States Department of Homeland Security.

The Coast Guard denied Captain Hight’s application for registration as a pilot on Lake Ontario and the Saint Lawrence River. It did so in part because he did not have the recommendation of a private entity, the Saint Lawrence Seaway Pilots Association, on which the Coast Guard relies to train, recommend, and dispatch pilots for maritime traffic in the critical seaway that connects the Great Lakes to the North Atlantic. Hight objected that the Coast Guard improperly delegated power to a private entity by allowing it to decide who may and may not pilot vessels on the seaway.

The panel (Judge Millett, joined by judges Wilkins and Pan) rejected his nondelegation challenge. As is typical in private nondelegation challenges, the Court does not analyze what type of power the Pilots Association may or may not be exercising. Instead, it asks generically whether the Association is exercising governmental “authority.”  (Justice Thomas has criticized this approach, and I think with good reason.) The Court concludes that the Pilots Association does not exercise such authority because it does not “approve, disapprove, or modify” registration applications. Instead, the Coast Guard merely relies on the Association for fact-finding and advice-giving in reaching its own registration decisions.

The opinion focuses on the Coast Guard’s registration decision, but the Court acknowledges that the Pilots Association “prescribes” the training a candidate pilot must undergo prior to registration. One reason the Coast Guard gave for denying Hight’s registration was that he had not completed the prescribed training. On this point, the Association’s role seems more than advisory. The Court does not decide whether the Constitution or the authorizing statute permits the Coast Guard to delegate authority to prescribe training requirements because it concludes that Hight forfeited the argument.

The Court also rejected Hight’s claim that the Coast Guard’s denial was arbitrary and capricious and declined to reach a First Amendment claim that it concluded was unripe.

D.C. Circuit Review – Reviewed is designed to help you keep track of the nation’s “second most important court” in just five minutes a week.