Friends of Gateway v. Slater

• Decision Date: 01 August 1999
• Docket Number: Docket No. 99-4081
• Citation: 257 F.3d 74
• Parties: (2nd Cir. 2001) FRIENDS OF GATEWAY, FLOYD BENNETT FIELD GARDENS ASSOCIATION, BARREN ISLAND MARINA BOATERS ASSOCIATION, PENNSYLVANIA AVENUE RADIO CONTROL SOCIETY OF GATEWAY NATIONAL PARK, and EDUCATORS OF GATEWAY, Petitioners, v. RODNEY SLATER, Secretary of Transportation, JANE F. GARVEY, Administrator, Federal Aviation Administration, UNITED STATES DEPARTMENT OF TRANSPORTATION, and FEDERAL AVIATION ADMINISTRATION, Respondents
• Court: U.S. Court of Appeals — Second Circuit

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257 F.3d 74 (2nd Cir. 2001) FRIENDS OF GATEWAY, FLOYD BENNETT FIELD GARDENS ASSOCIATION, BARREN ISLAND MARINA BOATERS ASSOCIATION, PENNSYLVANIA AVENUE RADIO CONTROL SOCIETY OF GATEWAY NATIONAL PARK, and EDUCATORS OF GATEWAY, Petitioners,
v.
RODNEY SLATER, Secretary of Transportation, JANE F. GARVEY, Administrator, Federal Aviation Administration, UNITED STATES DEPARTMENT OF TRANSPORTATION, and FEDERAL AVIATION ADMINISTRATION, Respondents. Docket No. 99-4081.
August Term, 1999. UNITED STATES COURT OF APPEALS
SECOND CIRCUIT Argued: March 9, 2000.
Decided: July 09, 2001.

Petition for review of the March 29, 1999 decision of the Federal Aviation Administration ("FAA"), approving installation of a radar tower on FAA-administered land within the boundaries of Gateway National Recreation Area.

PETITION DENIED.

Judge Cardamone dissents in a separate opinion.

John Minardo, BLS LEGAL SERVICES CORP., Federal Litigation Program, Brooklyn, NY, for Petitioners.

Jeff C. Dobbins, United States Department of Justice, Washington, DC, for Respondents.

Before: CARDAMONE, MCLAUGHLIN, PARKER, Circuit Judges.

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PARKER, Circuit Judge:

Friends of Gateway, Floyd Bennett Field Gardens Association, Barren Island Marina Boaters Association, Pennsylvania Avenue Radio Control Society of Gateway National Park, and Educators of Gateway petition for review of the March 29, 1999 order (the "Order") of the Federal Aviation Administration (the "FAA"), authorizing the installation of a Terminal Doppler Weather Radar System (the "Radar Tower" or "TDWR") on FAA-administered land at Floyd Bennett Field ("Floyd Bennett Field" or the "Field"), within the boundaries of Gateway National Recreation Area ("Gateway"). Petitioners argue that § 460cc-2(e) of the Gateway National Recreational Area Act of 1972, Pub. L. No. 92-592 (October 27, 1972), codified at 16 U.S.C. §§ 460cc to 460cc-4 (the "Gateway Act"), prohibits the installation of the Radar Tower on any property at Floyd Bennett Field within the boundaries of Gateway. The FAA argues, inter alia, that its use of its own land within the boundaries of Gateway is not restricted by § 460cc-2(e). For the following reasons, we affirm the decision of the FAA to site the Radar Tower on its property at Floyd Bennett Field.

I. BACKGROUND

A. Floyd Bennett Field and Gateway National Recreation Area

Floyd Bennett Field was built in 1930 as New York City's first municipal airport. In 1936, New York City leased approximately ten acres of property on the eastern part of the Field to the United States Coast Guard (the "Coast Guard Air Station"). In May 1941, New York City leased the remainder of the Field to the United States Navy. In November 1941, President Roosevelt transferred the Coast Guard to the Department of the Navy. During World War II, the entire Field was ceded to the United States Navy for the purpose of creating the Naval Air Station, Floyd Bennett Field. Thus, by 1943, the entire Field was under the jurisdiction of the Department of the Navy.

On January 1, 1946, the Coast Guard was transferred to the Department of the Treasury and on April 1, 1967, the Coast Guard was transferred to the newly formed Department of Transportation ("DOT"). In 1971, the Naval Air station was decommissioned, but the Coast Guard Air Station remained in operation under the jurisdiction of the DOT.

In 1972, Congress established Gateway as one of two "urban parks," the other being Golden Gate National Recreation Area ("Golden Gate") in San Francisco. See Gateway Act; Golden Gate National Recreation Area Act of 1972, Pub. L. 92-589 (October 27, 1972), codified at 16 U.S.C. §§ 460bb to 460bb-5 (the "Golden Gate Act"). Floyd Bennett Field was included within the boundaries of the Jamaica Bay Unit of Gateway. See 16 U.S.C. § 460cc(a)(1). Upon enactment of the Gateway Act, the Department of the Interior ("DOI") took over administration of the Field, except the portion administered by the Coast Guard as the Coast Guard Air Station and another section administered by the Armed Forces Reserve. The Gateway Act permitted the agency with control over these non-DOI federal enclaves to continue using the property until such time, if ever, as that agency decided to transfer administration of the property to the DOI. See 16 U.S.C. § 460cc-1(b); Natural Resources Defense Council, Inc. v. Marsh, 836 F.2d 87, 88 (2d Cir. 1987) (interpreting Gateway Act); Gateway General Management Plan.

In 1997, the DOT, as the parent agency of both the Coast Guard and the FAA, reassigned, from the Coast Guard to the

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FAA, 1.8 acres in the middle of the Coast Guard Air Station (the "FAA Property"). Petitioners do not challenge this interdepartmental transfer. In 1998, the DOT transferred administration of the remainder of the property under its control (not including the 1.8 acre parcel) to the DOI; the DOI then leased the property to the New York City Police Department for use as a home base for its helicopters for the next 25 years. The proposed site for the Radar Tower is on the 1.8 acres of FAA Property.

B. Choosing the Site for the Radar Tower

In 1975, Eastern Airlines Flight 66 crashed at John F. Kennedy International Airport ("JFK"), killing 112 people. One of the causes of the accident was a type of low-altitude wind shear called a "microburst," which is a small but powerful downward rush of cold air that spreads out as it reaches the ground. A microburst can cause the wind direction to shift 180 degrees several times within the space of a few miles. An aircraft passing through a microburst is in extreme danger. The aircraft will encounter a strong headwind, causing the pilot to compensate by changing altitude or throttling back. As the plane passes through the center, the wind turns into a tail wind, decreasing lift and resulting in loss of altitude and control. Occasionally, this results in an aircraft being pushed into the ground. By 1983, microbursts and other wind shear had resulted in 28 airline accidents. In 1985, 137 people died near the Dallas-Fort Worth airport when an American Airlines aircraft crashed as a result of an undetected microburst.

After the risks associated with these weather patterns became clear, the FAA began developing a detection system in conjunction with public and private researchers. Microbursts are very difficult to detect using conventional radar systems. The Terminal Doppler Weather Radar System ("TDWR") combines standard radar with the Doppler effect¹ to effectively detect wind shear and developing microbursts. TDWR warns air traffic controllers of these conditions several minutes before an aircraft enters the area. It is comprised of a steel-lattice tower, 87 feet high by 17 feet square, topped by a white "radome" that shields the antenna from weather and birds. It also includes a small building at the base of the tower to house computer systems used to gather and evaluate distance and speed information and transmit it to air traffic controllers.

These radar systems have been installed near airports all over the country and Congress has been clamoring for the FAA to install one for JFK and LaGuardia Airport ("LaGuardia"). See S. Rep. 104-126, at 53 (1995) ("The Committee is extremely concerned that the FAA has made no progress on siting... the TDWR...."). Initially, Congress funded two Radar Towers to serve JFK and LaGuardia, one for each airport. SeeJ.A. Volume II (Final Environmental Impact Statement ("EIS"))² at 6. In 1993, the FAA completed environmental assessments and reached preliminary conclusions regarding preferred locations. Congress and the local community opposed the FAA's choices because both

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were very close to residential neighborhoods. As a result, the FAA began reconsidering its conclusions. During that time, Congress decided that one Radar Tower could serve both JFK and LaGuardia, see id., and it earmarked the funds for the surplus system to be installed at McCarran International Airport in Las Vegas, Nevada. As a result, the FAA was required to locate a new site that would provide the proper coverage for JFK and LaGuardia airports. See id.

In 1995, the FAA began the technical evaluation and environmental impact review of sites for the single Radar Tower. The result of the FAA's work was a 1999 Final Environmental Impact Statement, the EIS. The EIS reviews several possible locations and alternatives to installation of the Radar Tower. The EIS concludes that the best alternative is installation of the Radar Tower at Floyd Bennett Field. According to the EIS, installing the Radar Tower at Floyd Bennett Field provides the best possible coverage for both airports, presents none of the maintenance concerns of an island or offshore facility, and has no significant environmental impact. The proposed site is already closed to the public; the nearest residences are one and one half miles away; the public gardens are more than a mile away; and there is a 200 foot National Park Service ("NPS") radio tower one quarter of a mile away. Furthermore, the site is already being used as an air facility, and the site is on land already being administered by the FAA.

After the required notice and comment period under the Administrative Procedures Act, on March 30, 1999, the FAA issued the Order and the record of decision, which concluded that the Radar Tower should be placed on the FAA Property at Floyd Bennett Field. See 64 Fed. Reg. 16516 (1999)(announcing issuance of record of decision and EIS, and announcing that "by order of the Administrator a single TDWR will be installed at U.S. Coast Guard Air Station Brooklyn site"). Petitioners filed a timely petition for review in this Court.

II. DISCUSSION

A. Jurisdiction

This Court has jurisdiction to review a decision of the FAA pursuant to 49 U.S.C. § 46110(a), which provides in relevant part that

a person disclosing a substantial interest in an order issued by... the Administrator of the Federal Aviation...