Friends of Gateway v. Slater

257 F.3d 74, 2001 WL 793231

• Court: Court of Appeals for the Second Circuit
• Decided: July 9, 2001
• Docket: Docket No. 99-4081
• Status: Published

Opinions

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 § 460ec-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. §§ 460ce 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)(l). 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 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 “micro-burst,” 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 micro-burst.

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 micro-bursts. 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. See J.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 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 McCar-ran 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 Procedure 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 Administration ... may apply for review of the order by filing a petition for review in the ... court of appeals of the United States for the circuit in which the person resides or has its principal place of business. The petition must be filed not later than 60 days after the order is issued.

49 U.S.C. § 46110(a). Once the petition is before the Court, the Court

has exclusive jurisdiction to affirm, amend, modify, or set aside any part of the order and may order the ... Administrator to conduct further proceedings. After reasonable notice to the ... Administrator, the court may grant interim relief by staying the order or taking other appropriate action when good cause for its action exists. Findings of fact by the Secretary or Administrator, if supported by substantial evidence, are conclusive.

Id. § 46110(c).

The Supreme Court has stated, however, that Congress cannot create Article III standing by statute. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 576-78, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Furthermore, the Supreme Court recently decided that this Court must address any jurisdictional standing question first, before deciding a case on the merits. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93-94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (“The Ninth Circuit [and the Second Circuit have] denominated this practice — which [they] characterize[ ] as ‘assuming’ jurisdiction for the purpose of deciding the merits — the ‘doctrine of hypothetical jurisdiction.’ We decline to endorse such an approach because it carries the courts beyond the bounds of authorized judicial action and thus offends fundamental principles of separation of powers.”) (citations omitted) (footnote omitted). Although respondents do not challenge petitioners’ Article III standing, we must nevertheless take it upon ourselves to determine whether we have jurisdiction over this case.

The petitioners in this case allege that they frequently and regularly use areas of Gateway that would be affected by expansion of airway facilities within the park, and that they have an interest in having their use preserved. In addition, petitioners contend that their recreational use would be affected by the eyesore that is this Radar Tower. Thus, petitioners have presented sufficient allegations to support their standing to petition for review of the FAA Order. See United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 687-90, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972).

B. Section A60cc-2(e) does not restrict the FAA’s use of the FAA Property

Petitioners argue that the FAA Order violates 16 U.S.C. § 460cc-2(e), which provides:

The authority of the Secretary of Transportation to maintain and operate existing airway facilities and to install necessary new facilities within the recreation area shall be exercised in accordance with plans which are mutually acceptable to the Secretary of the Interior and the Secretary of Transportation and which are consistent with both the purpose of this subchapter and the purpose of existing statutes dealing with the establishment, maintenance, and operation of airway facilities: Provided, That nothing in this section shall authorize the expansion of airport runways into Jamaica Bay or air facilities at Floyd Bennett Field.

16 U.S.C. § 460cc-2(e). Focusing on the last sentence in this section (the “Proviso”), petitioners claim that the plain meaning of the statute compels the conclusion that installing the Radar Tower is an “expansion” of “air facilities” at Floyd Bennett Field.³

The FAA argues that: (1) the plain meaning of § 460cc-2(e) does not support a reading that prohibits installation of the Radar Tower at Floyd Bennett Field; (2) the legislative history of the Gateway Act reinforces the FAA’s interpretation of § 460ec-2(e) as prohibiting only physical encroachment by airports into park lands; (3) the Gateway Act as a whole and its legislative history support a reading that the use-restriction of § 460cc-2(e) does not apply to FAA-administered property; and (4) the FAA-administered property is not within the recreation area and therefore the Gateway Act does not apply at all. Because we agree with the FAA that the use-restriction of § 460cc-2(e) does not apply to the FAA Property, we do not address the FAA’s other arguments.

As petitioners contend, we review the FAA’s interpretation of the statutory language de novo. Petitioners cite only one case in their brief, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Chevron stands for the proposition that a court must construe a statute in accordance with its plain meaning and the intent of Congress, see id. at 859-62, 104 S.Ct. 2778, and also for the proposition that a Court owes deference to an agency’s interpretation of a statute only if it is an enabling statute for that agency, see id. at 844-45, 104 S.Ct. 2778 (“ ‘If this choice represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.’ ”) (emphasis added) (quoting United States v. Shimer, 367 U.S. 374, 382, 383, 81 S.Ct. 1554, 6 L.Ed.2d 908 (1961)). The Gateway Act is not an enabling statute for the FAA. Thus, as petitioners argue, the FAA’s “choice” to site the Radar Tower at Floyd Bennett Field cannot be a “reasonable accommodation of conflicting policies” committed to the FAA by the Gateway Act, and we interpret the statute without deference to the FAA’s interpretation.

Looking at the overall structure and the legislative history of the Gateway Act, we conclude that Congress did not intend to restrict the use of federal land that is located within the boundaries of Gateway pursuant to § 460cc(a) but not yet acquired by the DOI pursuant to § 460cc-l. The Gateway Act consists of five sections, only three of which are relevant to this case: (1) “Establishment,” 16 U.S.C. § 460ec; (2) “Acquisition of property,” id. § 460cc-l; and (3) “Administration,” id. § 460cc-2.⁴ Section 460cc establishes the “[composition and boundaries” of Gateway, including within its boundaries the Jamaica Bay Unit, which in turn includes “Floyd Bennett Field.” Id. § 460cc(a)(l). Section 460cc-l authorizes the DOI to acquire in various ways the lands and waters “within the boundaries of the recreation area.” Id. § 460cc-l(a) & (b). In § 460cc-l(a), Congress authorized the DOI to acquire lands and waters “[w]ithin the boundaries of the recreation area,” or interests therein, from individuals and the states of New York and New Jersey. Id. § 460cc-l(a). In § 460cc-l(b), Congress authorized the transfer, at the discretion of the federal agency having custody, of “any Federal property within the boundaries of the recreation area ... to the administrative jurisdiction of the [DOI] for administration as part of the recreation area.” Id. § 460cc-l(b). Section 460cc-2 directs the DOI to administer the recreation area “in accordance with” the other sections of the Gateway Act. Id. § 460cc-2(a).

These sections read together indicate that lands and waters within the boundaries of the recreation area pursuant to § 460cc, but not yet acquired by the DOI pursuant to § 460cc-l(a) or (b), are not part of the recreation area, and are not subject to “administration” pursuant to § 460cc-2. More specifically, § 460cc-l(b) indicates that the non-DOI federal enclaves within the boundaries of the recreation area are not part of the recreation area, and are not subject to “administration” pursuant to § 460ce-2. Once we determine that property administered by federal agencies other than the DOI is neither “part” of Gateway nor subject to administration pursuant to § 460ec-2, it follows that § 460cc-2 does not apply to those agencies’ use of that property.⁵

That Congress intended to leave enclaves within the boundaries of Gateway that would not be subject to the use-restrictions covering the land administered as part of the recreation area is supported by the concurrent enactment of the Golden Gate Act. See Marsh, 836 F.2d at 90 (relying heavily on the differences between the Gateway Act and the Golden Gate Act in interpreting § 460cc-l(b) of the Gateway Act). The original bills for both the Gateway and Golden Gate Acts required that federal lands be transferred to the DOI upon enactment, and required that the DOI allow existing uses by other federal agencies for as long as “reasonably required to fulfill the mission assigned to [the lands].” H.R.Rep. No. 92-1392 (1972), reprinted in 1972 U.S.C.C.A.N. 4882, 4889 (the “Gateway House Report”); see H.R.Rep. No. 92-1391, reprinted in 1972 U.S.C.C.A.N. 4850, 4857 (discussing proposed Golden Gate legislation). Only the Golden Gate Act, however, ultimately provided for such automatic transfer of most federal lands within the boundaries of Golden Gate, see 16 U.S.C. § 460bb-2 (section on “Acquisition”), and for the DOI’s administration of these lands “acquired for the recreation area.” Id. § 460bb-3(a) (section on “Administration”). The Golden Gate Act required the DOI to allow the continuation of existing uses of land formerly held by other agencies. See id. § 460bb-2(a). In contrast, the Gateway Act provided that federal agencies holding federal lands within the boundaries of Gateway may transfer those lands, and that only at that point would those lands be administered by the DOI as part of Gateway. See id. § 460cc-l(b).

Furthermore, whereas the Golden Gate Act clearly restricted the use of lands “under the administrative jurisdiction of a department other than [the DOI],” id. § 460bb-2(i) (“New construction and development within the boundaries described in § 460bb-l(a) of this title on lands under the administrative jurisdiction of a department other than [the DOI] is prohibited, except that improvements on lands which have not been transferred to [the DOI’s] administrative jurisdiction may be reconstructed or demolished.”)) the Gateway Act never similarly restricted the use of lands under the administrative jurisdiction of a federal agency other than the DOI. If Congress had wanted to restrict the use of federal lands held by other agencies within the boundaries of Gateway, Congress could have provided for such restrictions as it did in the Golden Gate Act. As the Golden Gate Act demonstrates, Congress knew how to implement such restrictions if it so desired. Instead, Congress chose in the Gateway Act to leave the use of non-transferred federal lands within the boundaries of Gateway to the discretion of the holding agency.

We also find it persuasive that in the one place where the Golden Gate Act uses the identical restrictive terminology used in § 460ec-2(e) of the Gateway Act, the restrictions on activities “within the recreation area” clearly refer only to lands already transferred to the DOI for administration as part of the park. See id. § 460bb-2(g). Section 460bb-2(g) provides:

When this property is determined to be in excess to the needs of the Coast Guard, it shall be transferred to the jurisdiction of the [DOI] for purposes of this subchapter [ i.e., Administration]. The Coast Guard may continue to maintain and operate existing navigational aids: Provided, That access to such navigational aids and the installation of necessary new navigational aids within the recreation area shall be undertaken in accordance with plans which are mutually acceptable to the [DOI] and the [DOT] and which are consistent with both the purposes of this subchapter and the purpose of existing statutes dealing with establishment, maintenance, and operation of navigational aids.

Id. § 460bb-2(g). In this section, “within the recreation area” refers to lands “transferred to the jurisdiction of the [DOI] for purposes of [administering Golden Gate].” Id. Congress presumably meant the same when it used the identical language in the Gateway Act to restrict the DOT’s authority to maintain, operate, and install air facilities “within the recreation area.” Id. § 460cc-2(d) & (e). Although the restrictions in the Gateway Act are not preceded by language mandating the transfer of certain land to the DOI, that is because the Gateway Act does not mandate the transfer of any land to the DOI. See Marsh, 836 F.2d at 90.⁶

The legislative history of the Gateway Act, and particularly § 460cc-2(d)⁷ and (e), also supports our interpretation of the statute. In officially responding to several proposed bills for establishing Gateway, the Department of the Army made clear that much of the existing military lands were still needed for military purposes or would be transferred to the Coast Guard for the DOT’s purposes, and that the Gateway Act should not interfere with that use. See Gateway House Report, 1972 U.S.C.C.A.N. at 4901-02, 4905. The Department of the Army also suggested that the Gateway Act include a section providing for mutual agreement between the DOI and the Army Corps of Engineers with regard to water resource development. See id. at 4905. Similarly, the DOI suggested that the legislation provide for mutual agreement between the DOI and the DOT with regard to maintaining and expanding JFK. See id. at 4901. The House’s response, section 3 of the proposed bill, is described in the Gateway House Report as dealing “with the administrative authority of the [DOI].... [I]t permits the [DOI] to establish working arrangements with the Secretaries of the Army and Transportation with respect to functions which are compatible with the purposes of this legislation.” See id. at 4892 (emphasis added). This reference to “permitting” the DOI to “establish working arrangements” became § 460cc-2(d) and (e). This legislative history indicates that these sections were meant to provide for the Army’s and the DOT’s agreement with the DOI before acting within their otherwise available authority, i.e., pursuant to “existing statutes,” 16 U.S.C. § 460cc-2(d) & (e), in such a way that would affect land administered by the DOI. These sections were not intended to interfere with the Army’s military use of the land it retained or the DOT’s use of the land the Army transferred to it.

Several official DOI acts and DOI documents also support this reading of §§ 460cc-l(b) and 460cc-2(e). In 1994, for example, the DOI, through the NPS, officially revised the boundaries of Gateway “because Fort Wadsworth is being transferred to the [NPS] as a result of the closure of Naval Station New York.” 59 Fed.Reg. 43588 (1994). Although Fort Wadsworth was already entirely “within the boundaries” of the Recreation Area pursuant to § 460cc(a)(4), the DOI nevertheless found that certain portions of Fort Wadsworth were “not suitable for inclusion in Gateway National Recreation Area,” id. at 43588 (emphasis added), and did not include them in the park. This finding of the DOI implies that before transfer, the property was not yet part of Gateway. In addition, the NPS’s 1979 Gateway General Management Plan stated that certain non-DOI federal “enclaves,” including the Coast Guard Property at Floyd Bennett Field, are “excluded properties.” The NPS’s 1983 Development Concept Plan for Floyd Bennett Field depicts the Coast Guard property and other non-DOI federal enclaves as separate from the recreation area lands at Floyd Bennett Field.

Finally, this Court has characterized § 460cc-l(b) as creating non-DOI federal enclaves not included within the recreation area. See Marsh, 836 F.2d at 88 (discussing the transfer of property from the Army to the DOI “for inclusion in the recreation area”). Marsh held that the Army could transfer property under its jurisdiction to the Navy rather than the DOI: “Although the Gateway Act includes Fort Wadsworth within the boundaries of the Gateway National Recreation Area, the Act specifies no time for the Fort’s transfer to the [DOI] and imposes no limitations on the Department of Defense’s intervening use.” Id. at 90 (emphasis added). The Court reached this conclusion notwithstanding § 460cc-2(d)’s requirement that the Department of the Army consult and agree with the DOI in its water resources development activities “within the recreation area.” 16 U.S.C. § 460ce-2(d). Consistent with Marsh, we conclude that the Gateway Act likewise imposes no limitations on the DOT’s intervening use of its own property, even though § 460cc-2(e) requires the DOT to consult and agree with the DOI in its air facility development activities “within the recreation area.” Id. § 460cc-2(e).

III. CONCLUSION

For the foregoing reasons, we hold that § 460cc-2(e) does not apply to the FAA’s use of its own property and therefore does not prohibit the FAA from exercising its otherwise existing authority to install the Radar Tower on the FAA Property at Floyd Bennett Field. Neither does § 460cc-2(e) require the FAA to reach agreement with the DOI in order to exercise that authority. We therefore affirm the FAA Order.

We note that the FAA has filed a motion for reconsideration of its motion requesting that we take judicial notice of the now existing agreement between the DOT and the DOI concerning installation of the Radar Tower. Because we conclude that § 460cc-2(e) is inapplicable, the agreement between the DOI and DOT was unnecessary to the FAA’s decision. The existence of the agreement is therefore irrelevant to our determination. The FAA’s motion for reconsideration is denied.

1 . "Doppler effect" refers to changes in wavelength and frequency of a wave as a result of the motion of the source of the waves. These changes in waves are analyzed to measure the velocity and distance of remote objects. See Webster’s Third New International Dictionary 675 (1981).

2 . Instructions on how to obtain a copy of the EIS appear at 64 Fed.Reg. 16516 (1999).

3 . Petitioners argue in the alternative (for the first time in their Reply Brief) that, even if installation of the Radar Tower at Floyd Bennett Field is not an expansion of air facilities prohibited by the Proviso, § 460cc-2(e) otherwise requires the DOT to come to an agreement with the DOI when exercising the authority "to maintain and operate existing airway facilities and to install necessary new facilities within the recreation area.” Petitioners argue that the FAA violated the statute by failing to establish a plan that was mutually acceptable to the DOT and the DOI before providing for notice and comment and reaching a decision on its proposed site.

First, petitioners waived this alternative argument by not raising it prior to filing their Reply Brief, and by inadequately raising it there. Second, the argument is irrelevant because we hold that § 460cc-2(e) does not apply to the FAA's use of the FAA Property at Floyd Bennett Field.

4 . The other two sections are entitled "Gateway National Recreation Area Advisory Commission,” id. § 460cc-3, and "Authorization of appropriations; limitation; adjustments,” id. § 460cc-4.

5 . The dissent contends that our reading of this provision renders the provision ''nonsensical.” This provision, however, explicitly distinguishes between those lands "within the boundaries of the recreation area” but controlled by another federal agency and those lands that are "part of the recreation area” and within the "administrative jurisdiction of the [DOI].” 16 U.S.C. § 460cc-l(b) (emphasis added). The dissent equates these two terms, by asserting that the DOT and the DOI have joint jurisdiction over the 1.8 acres of FAA property within the boundaries of the recreation area although this property has not been transferred to the DOI, and thus concludes that § 460cc-2(e) applies to this property. Such a reading renders the distinction that Congress outlined in § 460cc-l(b) without meaning, because it grants to the DOI jurisdiction over lands not yet transferred to it. We therefore conclude that Congress's explicit distinction in § 460cc-l(b) indicates its intent that lands not yet transferred pursuant to that section are not part of the administrative jurisdiction of the DOI.

6 . The dissent correctly points out that § 460bb-2(g) "grants joint jurisdiction over the installation of new navigational aids 'within the recreation area.’ ” Dissent at 86. In concluding that § 460cc-2(e), in language similar to § 460bb-2(g), also grants joint jurisdiction to both the DOT and the DOI over the 1.8 acres of FAA property within the boundaries of Floyd Bennett Field, the dissent fails to recognize that § 460bb-2(g)’s grant of joint jurisdiction refers specifically to lands that have already been transferred (as is mandated by the Golden Gate Act) to the administrative jurisdiction of the DOI, and are thus "within the recreation area.” Therefore, like § 460bb-2(g)'s grant of joint jurisdiction, § 460cc-2(e)’s grant of joint jurisdiction refers to lands that have been transferred to the administrative jurisdiction of the DOI and thus are "within the recreation area.”

The dissent relies, in part, on § 460cc-2(e)’s lack of explicit "temporal language” as contained in the Golden Gate Act’s § 460bb-2(g). Dissent at 9. As we earlier stated, however, § 460bb-2(g) contains explicit temporal language because the Golden Gate Act, unlike the Gateway Act, mandated transfer of lands to the DOI immediately upon enactment of the Golden Gate Act. See 16 U.S.C. § 460bb-2(a). Section 460bb-2(g) is an exception to this policy, providing that the Coast Guard may retain jurisdiction over certain lands, but must transfer the property "when the property is determined to be excess to the needs of the Coast Guard.” Therefore, language similar to § 460bb-2(g)’s provision that "[t]he Coast Guard may continue to maintain and operate existing navigational aids” is unnecessary in § 460cc-2(e) because § 460cc-2(e) does not contain any reference to the transfer of lands.

7 . Section 460cc-2(d), entitled "Water resource developments,” provides:

The authority of the Secretary of the Army to undertake or contribute to water resource developments, including shore erosion control, beach protection, and navigation improvements ... on land and/or waters within the recreation area shall be exercised in accordance with plans which are mutually acceptable to the Secretary of the Interior and the Secretary of the Army and which are consistent with both the purpose of this subchapter and the purpose of existing statutes dealing with water and related land resource development.