United States District Court, District of Columbia
Amit P. Mehta, United States District Judge
In December 2015, pursuant to permits issued by Defendant United States Forest Service (“Forest Service”) and an Operating Plan that the agency had approved, Intervenor Elkhorn Minerals LLC (“Elkhorn Minerals”) began mining for gravel on a five-acre parcel of land in Billings County, North Dakota. The five-acre parcel lies within a 24.6 acre tract of land on which, under the agreed upon Operating Plan, mining operations are expected to continue for the next two to three years. The surface rights of the 24.6 acre tract are owned by the Forest Service, which acquired those rights in 2007 as part of a 5, 200 acre purchase of land surrounding the Elkhorn Ranch Unit of Theodore Roosevelt National Park. The 5, 200 acre purchase was explicitly subject to pre-existing mineral rights, including those within the 24.6 acres now held by Elkhorn Minerals.
Though mining operations began only months ago, more than six years have passed since the Forest Service first received Elkhorn Minerals’ plans to extract gravel from the land. Extensive negotiations followed, with the Forest Service mindful throughout of Elkhorn Minerals’ valid subsurface rights, and Elkhorn Minerals equally mindful of the Forest Service’s entitlement to limit surface use to that which is reasonable. As negotiations progressed, so too did the Forest Service’s efforts to comply with the procedural duties imposed upon it by the National Environmental Policy Act. It this lawsuit, Plaintiff National Parks Conservation Association (“NPCA”) challenges the Forest Service’s fulfillment of those duties.
NPCA brought this action under the Administrative Procedure Act. It alleges that the Forest Service violated the National Environmental Policy Act by issuing a “Decision Notice and Finding of No Significant Impact, ” rather than preparing an “Environmental Impact Statement, ” for Elkhorn Minerals’ mining operations. NPCA alleges a host of deficiencies in the Forest Service’s actions. It argues that the Forest Service (1) adopted an improperly narrow “purpose and need” statement to evaluate the proposed project; (2) inadequately considered alternatives to approving the project; and (3) failed to take a “hard look” at the project’s environmental impacts. NPCA asserts that these deficiencies, along with the precedential and controversial nature of the Forest Service’s actions, required the production of an Environmental Impact Statement. NPCA further alleges that the Forest Service’s failure to amend the Land and Resource Management Plan for the Dakota Prairie Grasslands-the Forest Service region in which the mining is occurring- violated the National Forest Management Act.
Following the court’s denial of NPCA’s Motion for a Temporary Restraining Order and its subsequent denial of NPCA’s Motion for a Preliminary Injunction, the parties-including Intervenor Elkhorn Minerals-cross-moved for summary judgment. Those Motions for Summary Judgment are now before this court. Upon consideration of the parties’ filings and the Administrative Record, the court finds that the Forest Service has complied with the National Environmental Policy Act and the National Forest Management Act. It therefore grants the Forest Service’s and Elkhorn Minerals’ Motions for Summary Judgment in their entirety, and denies NPCA’s Motion for Summary Judgment in its entirety.
A. Regulatory Framework
1. The National Environmental Policy Act
The National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4321 et seq., “establishes a ‘national policy [to] encourage productive and enjoyable harmony between man and his environment.’” U.S. Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 756 (2004) (quoting 42 U.S.C. § 4321). It aims to effectuate that policy, “not [by] mandat[ing] particular results, but simply [by] prescrib[ing] the necessary process.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989); see also Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 371 (1989) (“NEPA does not work by mandating that agencies achieve particular substantive environmental results.”). As the Court of Appeals has noted, it “is an ‘essentially procedural’ statute intended to ensure ‘fully informed and well-considered’ decisionmaking, but not necessarily the best decision.” New York v. Nuclear Regulatory Comm’n, 681 F.3d 471, 476 (D.C. Cir. 2012) (quoting Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 558 (1978)). NEPA ensures that federal agencies engage in such decisionmaking through certain “‘action-forcing procedures, ’” Andrus v. Sierra Club, 442 U.S. 347, 350 (1979) (quoting S. Rep. No. 91-296, at 19 (1969)), which require them “to consider and report on the environmental effect of their proposed actions, ” WildEarth Guardians v. Jewell, 738 F.3d 298, 302 (D.C. Cir. 2013). The Council on Environmental Quality, a body created by NEPA, promulgates binding regulations that “tell federal agencies what they must do to comply with [NEPA’s] procedures and achieve the goals of the Act.” 40 C.F.R. § 1500.1.
Specifically, NEPA and its implementing regulations require federal agencies to issue an exhaustive, in-depth analysis document referred to as an Environmental Impact Statement (“EIS”) in connection with “proposals for . . . major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). An EIS must include “detailed statement[s]” about, among other things, “the environmental impact of the proposed action”; “any adverse environmental effects which cannot be avoided should the proposal be implemented”; and “alternatives to the proposed action.” Id. § 4332(C)(i)-(iii). “The statutory requirement that a federal agency contemplating a major action prepare such an [EIS] serves NEPA’s ‘action-forcing’ purpose” by guaranteeing (1) “that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts” and (2) “that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.” Robertson, 490 U.S. at 349; see also Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97 (1983) (discussing NEPA’s “twin aims”).
Because agencies need only prepare an EIS for actions “significantly affecting the quality of the human environment, ” 42 U.S.C. § 4332(C), and “as the ecological significance of administrative actions are often less than self-evident, ” Humane Soc’y of the U.S. v. U.S. Dep’t of Commerce, 432 F.Supp.2d 4, 13-14 (D.D.C. 2006), NEPA permits agencies as a first step to prepare an Environmental Assessment (“EA”)-a comprehensive but abbreviated analysis of a proposed project’s environmental impacts-to determine whether an EIS is necessary, see 40 C.F.R. § 1501.3-4. If, based on a completed EA, an agency determines that a proposal will not significantly affect the quality of the environment, it may issue a Decision Notice and Finding of No Significant Impact (“DN/FONSI”) instead of proceeding with an EIS. Id. §§ 1501.4(e)(1), 1508.13. A DN/FONSI includes the EA or a summary of it and “briefly present[s] the reasons why an action . . . will not have a significant effect on the human environment and for which an [EIS] therefore will not be prepared.” Id. § 1508.13. It is the adequacy of the EA for Elkhorn Minerals’ mining operations and the Forest Service’s issuance of a DN/FONSI in lieu of an EIS that Plaintiff challenges here.
2. The National Forest Management Act
The National Forest Management Act of 1976 (the “NFMA”), 16 U.S.C. § 1600 et seq., requires the Secretary of Agriculture, through the Forest Service, to “develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System.” Id. § 1604(a). “In developing the plans, the Service must take both environmental and commercial goals into account.” Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 729 (1998). More specifically, the Forest Service must consider its statutory mandates to develop and administer the national forests “to secure favorable conditions of water flows and to furnish the country with a continuous supply of timber”; “for outdoor recreation, range, timber, watershed, and wildlife and fish purposes”; and “for multiple use and sustained yield of the several products and services obtained therefrom.” Montanans For Multiple Use v. Barbouletos, 568 F.3d 225, 226-27 (D.C. Cir. 2009) (citing 16 U.S.C. §§ 475, 528, 529).
The NFMA imposes a second requirement on the Forest Service. The NFMA mandates that “[r]esource plans and permits, contracts, and other instruments for the use and occupancy of National Forest System lands . . . be consistent with the land [and resource] management plans.” 16 U.S.C § 1604(i). In practice, this provision requires the Forest Service to “analyze and authorize site-specific projects consistent with the governing plan” for the region in which the project is located. Montanans For Multiple Use, 568 F.3d at 227 (citations omitted). Plaintiff here challenges the adequacy of the Dakota Prairie Grasslands’ Land and Resource Management Plan (the “Grasslands Plan”) and thus the adequacy of the Forest Service’s compliance with the NFMA in connection with the approval of Elkhorn Minerals’ mining operations.
B. Factual Background
The court has twice summarized the factual background of this case. See Nat’l Parks Conservation Assoc. v. U.S. Forest Serv., No. 15-cv-01582, 2015 WL 9269401 (D.D.C. Dec. 8, 2015) [hereinafter TRO Op.]; Nat’l Parks Conservation Assoc. v. U.S. Forest Serv., No. 15-cv-01582, 2016 WL 420470 (D.D.C. Jan. 22, 2016) [hereinafter PI Op.], at *2-6. The court presumes familiarity with the facts as set forth in its prior decisions and thus provides only a recap of the relevant facts below.
In 2007, the Forest Service acquired the 5, 200-acre Elkhorn Ranchlands from a private landholder with the goal of “preserv[ing] the integrity and historic character of the area around . . . Theodore Roosevelt[’s] Elkhorn Ranch.” FS-002296; see also Pl.’s Mem. in Supp. of Mot. for Preliminary Inj., ECF No. 31-1 [hereinafter Pl.’s Mot. for PI], at 4. “During a three-and-one-half year period between 1884 and 1887, Elkhorn Ranch served as [President Theodore] Roosevelt’s ‘home ranch.’” Mot. for Leave to File Amicus Curiae Brief, ECF No. 37, Ex. 1, Proposed Br., ECF No. 37-1, at 5. The site of President Roosevelt’s former “ranch house” is in the Elkhorn Ranch Unit of Theodore Roosevelt National Park-one of the Park’s three separate units-which the Elkhorn Ranchlands surrounds. See Pl.’s Mot. for PI at 4. The Elkhorn Ranchlands is located within the region the Forest Service refers to as the Dakota Prairie Grasslands and is within the domain of the Forest Service’s Medora District Ranger. See Defs.’ Opp’n to Mot. for Prelim. Inj., ECF No. 35 [hereinafter Defs.’ Opp’n to PI], at 6. The Elkhorn Ranchlands is also located within the “Theodore Roosevelt’s Elkhorn Ranch and Greater Elkhorn Ranchlands National Historic District, ” which was created in 2012. See FS-000388-575, Environmental Assessment: Elkhorn Gravel Pit [hereinafter EA], at 29.
The Forest Service’s 2007 purchase of the Elkhorn Ranchlands was subject to all valid, existing mineral rights. See FS-003443-44. In 2009, Elkhorn Minerals co-owner Peggy Braunberger purchased “26.86% [of the] mineral ownership” from one of the “approximately forty different third party surface mineral and/or subsurface mineral owners, ” whose rights pre-existed the Forest Service’s 2007 acquisition, and “were not available for purchase by the government” at that time. EA at 6. On February 9, 2010, Braunberger submitted to the Medora District Ranger the “initial Operating Plan to mine and develop” the 24.6 acre tract at issue in this case (the “Gravel Pit”). Id. at 4, 11. On September 1, 2011, after “approximately eighteen months of negotiations” with the Forest Service, Braunberger submitted her final Operating Plan, id. at 4, 19, which then underwent a public comment period, see FS-000628-740.
From May 2012 to January 2015, the Forest Service engaged in the public-facing portion of the process required of it by NEPA. The Forest Service sought comments regarding multiple draft EAs, see FS-000958-59; FS-000081-151; FS-000974-1086, and, thereafter, “incorporate[d] changes resulting from public and agency input” into future drafts, see Defs.’ Opp’n to PI at 9. On April 24, 2014, the Forest Service issued a draft DN/FONSI, which underwent a “pre-decisional objection period.” Id. at 10. More than eight months later, on January 6, 2015, the Forest Service issued the final versions of the 80-page EA and the 19-page DN/FONSI. See generally EA; FS-000576-95.
Nearly six months later, on May 29, 2015, the Forest Service issued permits to Elkhorn Minerals that authorized the company to use certain access roads and to make use of the land’s surface for mining activities through April 1, 2017. See FS-004728-35; FS-004842-53; FS-004617-26. On December 14, 2015, after a contractor for Elkhorn Minerals improved the roads and performed other “pre-work, ” the Forest Service issued a “Notice to Proceed” with “Phase 2, ” “the first of 4 mining phases.” Defs.’ Opp’n to PI, Second Decl. of Shannon Boehm, ECF No. 35-1 [hereinafter Boehm Decl.], ¶¶ 4-7. Each phase “involve[s] an approximately 5-acre sub-site of the overall 24.6-acre authorization. Id. ¶ 7. As of this date, the court understands that mining operations on the second five-acre subsite-“Phase Three”-have yet to begin. See PI Order, ECF No. 43, at 2 (ordering the Forest Service and Elkhorn Minerals to “provide notice to Plaintiff and the court at least 72 hours before the Forest Service issues any permit that authorizes Elkhorn Minerals to commence mining operations on the next five-acre parcel, i.e., Phase Three”; as of this date, no such notice has been filed). Mining thus has occurred on no more than five acres of the 24.6 acre parcel.
C. Procedural History
On September 29, 2015, Plaintiff NPCA filed its Complaint against the Forest Service and five individuals in their official capacities,  seeking declaratory and injunctive relief. See generally Compl., ECF No. 1. Elkhorn Minerals, as the owner of “the dominant mineral rights at issue in this case, ” then filed a Motion to Intervene. See Mot. to Intervene, ECF No. 4, at 5. On November 9, 2015, in response to Plaintiff’s Complaint, the Forest Service filed a Motion to Transfer the case to the District of North Dakota. See generally Defs.’ Mot. to Transfer Venue, ECF No. 15.
Before the court had ruled on those pending motions, on November 30, 2015, Plaintiff filed a Motion for a Temporary Restraining Order based on its understanding that mining operations soon would commence. See generally Pl.’s Mot. for TRO, ECF No. 20. The court denied that Motion because “Plaintiff . . . made an insufficient showing as to both likelihood of success on the merits and irreparable harm.” TRO Op. at *2. Two weeks later and immediately after mining operations had begun, on December 16, 2015, Plaintiff filed a Motion for a Preliminary Injunction. See generally Pl.’s Mot. for PI. On January 8, 2016, the court held a hearing on that Motion. See Dkt. Entry (Jan. 8, 2016). At the start of the hearing, the court orally granted Elkhorn Minerals’ Motion to Intervene and denied the Forest Service’s Motion to Transfer. Mot. Hr’g Tr., Jan. 8, 2016, ECF No. 41, at 3:16-20, 3:22-25, 4:1-10.
On January 22, 2016, the court denied Plaintiff’s Motion for Preliminary Injunction. See generally PI Op. The court found that Plaintiff “failed to carry its burden of demonstrating irreparable harm and . . . failed to show that the balance of equities and the public interest weigh in favor of injunctive relief.” Id. at *12. Accordingly, the court did not need to address Plaintiff’s claims on the merits, but set an expedited briefing schedule to consider those issues before the next stage of mining commenced. See Id. at 2-3; PI Order at 1. The merits are now before the court.
III. LEGAL STANDARD
Plaintiff, Defendants, and Intervenor have filed Cross-Motions for Summary Judgment as to Plaintiff’s NEPA and NFMA claims, which are properly brought under the Administrative Procedure Act,  5 U.S.C. § 701 et seq. Cross-motions for summary judgment ordinarily are reviewed under the standard set forth in Federal Rule of Civil Procedure 56, which requires a court to grant summary judgment when the pleadings and the evidence demonstrate that “there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). However, in cases such as this one that involve the review of a final agency action, the Rule 56 standard does not apply. See Stuttering Found. of Amer. v. Springer, 498 F.Supp.2d 203, 207 (D.D.C. 2007). Instead, “the district judge sits as an appellate tribunal” and “[t]he ‘entire case’ on review is a question of law.” Am. Biosci. Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (citing cases). “[T]he court’s review is limited to the administrative record, ” Fund for Animals v. Babbitt, 903 F.Supp. 96, 105 (D.D.C. 1995) (citing Camp v. Pitts, 411 U.S. 138, 142 (1973)), and its role is limited to “determin[ing] whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did, ” see Sierra Club v. Mainella, 459 F.Supp.2d 76, 90 (D.D.C. 2006) (citation and internal quotation marks omitted).
Section 706 of the Administrative Procedure Act provides that a “reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). When analyzing agency action under “this ‘narrow’ standard of review-which appropriately encourages courts to defer to the agency’s expertise, ” Ark Initiative v. Tidwell, 64 F.Supp.3d 81, 90 (D.D.C. 2014) aff’d, No. 14-cv-5259, 2016 WL 874773 (D.C. Cir. Mar. 8, 2016), courts must determine whether the action at issue was based on “reasoned analysis, ” Motor Vehicle Mfrs. Ass’n of U.S. Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 56-57 (1983). Generally, an agency has engaged in such analysis when the administrative record indicates it “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” State Farm, 463 U.S. at 43 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).
Where, however, the administrative record indicates that an agency “relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or [made a decision that] is so implausible that it could not be ascribed to a difference in view or the product of agency expertise, ” it has acted in an arbitrary and capricious manner. Id. Although this standard is not “particularly demanding, ” Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993), and a reviewing court may “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned, ” Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974) (citation omitted), a court is not to “supply a reasoned basis for the agency’s action that the agency itself has not given, ” State Farm, 463 U.S. at 43 (citation and internal quotation marks omitted).
Important here, when reviewing an agency’s compliance with NEPA, “because the statute directs agencies only to look hard at the environmental effects of their decisions, and not to take one type of action or another, federal judges [must] correspondingly enforce the statute by ensuring that agencies comply with NEPA’s procedures, and not by trying to coax agency decisionmakers to reach certain results.” Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 194 (D.C. Cir. 1991) (“CAB”) (citing Baltimore Gas & Elec., 462 U.S. at 97-98); see also Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976) (“Neither [NEPA] nor its legislative history contemplates that a court should substitute its judgment for that of the agency as to the environmental consequences of its actions.”). Thus, as to Plaintiff’s NEPA claims, the court considers only whether the Forest Service complied with NEPA’s procedural mandates in preparing the EA and issuing a DN/FONSI for the Gravel Pit.
A. The Forest Service’s Compliance with NEPA
Plaintiff argues that the Forest Service failed to comply with several different requirements of NEPA, each of which renders arbitrary and capricious the agency’s issuance of a DN/FONSI in lieu of an EIS. First, Plaintiff argues that the Forest Service’s objectives, as set forth in the EA’s “purpose and need” statement, were so narrow as to improperly make the Forest Service’s approval of mining at the Gravel Pit a foregone conclusion. See Pl.’s Mot. for Summ. J., ECF No. 47 [hereinafter Pl.’s Mot.], at 28-29; see also Pl.’s Mot. for PI at 22-24; Compl. ¶ 112(1). In a related argument, Plaintiff contends that the Forest Service failed to adequately consider alternatives to the Gravel Pit, as required by NEPA. See Pl.’s Mot. at 27-29; see also Pl.’s Mot. for PI at 23-25; Compl. ¶ 112(2). Second, Plaintiff argues that the Forest Service neither took a hard look at, nor implemented sufficient measures to mitigate, several of the direct, indirect, and cumulative environmental impacts that will result from operations at the Gravel Pit. See Pl.’s Mot. at 15-24; see also Pl.’s Mot. for PI at 13-22; Compl. ¶¶ 112(4)-(6). And third, Plaintiff claims that the presence of two “significance factors” set forth in the CEQ regulations, namely the precedential and controversial nature of the Forest Service’s actions, required the production of an EIS. See Pl.’s Mot. at 24-26; see also Pl.’s Mot. for PI at 13-15. The court will address each argument in turn.
1. The EA’s “Purpose and Need” Statement and the Forest Service’s Consideration of Alternatives
Plaintiff asserts that the “purpose and need” statement that the Forest Service adopted for the EA was impermissibly narrow, rendering the approval of mining operations a foregone conclusion. Plaintiff also argues that the Forest Service failed to adequately consider certain reasonable alternatives to the plan it ultimately approved. These two contentions are appropriately addressed together because an agency’s purpose and need as to a proposed action-in other words, the objectives or goals that guide its evaluation-“provide the point of reference for a determination whether an alternative is reasonable in the first place.” City of Alexandria, Va. v. Slater, 198 F.3d 862, 867 (D.C. Cir. 1999) (internal quotation marks omitted); see also CAB, 938 F.2d at 195 (“The goals of an action delimit the universe of the action’s reasonable alternatives.”). Thus, the court must “first consider whether the agency has reasonably identified and defined its objectives. The agency’s choice of alternatives are, then, evaluated in light of these stated objectives.” City of Alexandria, 198 F.3d at 867; see also Theodore Roosevelt Conservation P’ship v. Salazar, 661 F.3d 66, 72 (D.C. Cir. 2011) (“TRCP”) (“[D]etermining whether an agency has included all reasonable alternatives requires us to decide first whether the agency has reasonably defined its stated goals.”).
a. The Forest Service’s objectives in evaluating the Gravel Pit
Where an agency, as here, is “asked to sanction a specific plan, ” it must “look hard” at several factors to determine appropriate objectives. CAB, 938 F.2d at 196. The agency must “take into account the needs and goals of the parties involved in the application” or proposal, and “[p]erhaps more importantly, . . . [must] consider the views of Congress, expressed, to the extent that the agency can determine them, in the agency’s statutory authorization to act, as well as in other congressional directives.” Id.; see also TRCP, 661 F.3d at 72-73. Courts are to review the agency’s consideration of these factors under the “rule of reason, ” see CAB, 938 F.2d at 195; TRCP, 661 F.3d at 73; City of Alexandria, 198 F.3d at 867, while according “considerable deference to the agency’s expertise and policy-making role, ” id. (citing CAB, 938 F.2d at 196). “[A]s long as the agency ‘look[s] hard at the factors relevant to the definition of purpose, ’ [courts] generally defer to the agency’s reasonable definition of objectives.” TRCP, 661 F.3d at 73 (quoting CAB, 938 F.2d at 196). Courts shall “reject an ‘unreasonably narrow’ definition of objectives, ” however, “that compels the selection of a particular alternative.” Id. (quoting CAB, 938 F.2d at 196).
Here, the Forest Service adopted the following “purpose and need” statement: “The purpose of this proposal is to implement Forest Service Policy, by documenting concerns, effects, design criteria and stipulations, and conditions of access and surface occupancy for exploration of private minerals in the analysis area.” EA at 11. This purpose and need statement, according to Plaintiff, is “improperly narrow” and “made approval of the gravel pit a preordained conclusion.” Pl.’s Mot. at 28. The Forest Service counters that it “was appropriately defined based on the purpose of the proposal, the infeasibility of a mineral exchange or purchase, and the scope of the authorities of the Forest Service as the subservient estate.” Defs.’ Mot. for Summ. J., ECF No. 46, [hereinafter Defs.’ Mot.], at 11. “The decision before the Agency was not whether or not to allow the gravel mine to be built, ” the Forest Service asserts, but was to “evaluate the contours of the potential operations.” Id. at 14. The court agrees.
i. “Needs and goals” of Elkhorn Minerals
In evaluating the “needs and goals of the parties involved in the application, ” an agency necessarily must take into account at least two considerations. First, it must consider the requesting party’s interest in the project, and second, it must consider the extent of the agency’s authority to approve or modify the project. See CAB, 938 F.2d at 199. Here, the requesting party’s interest in the project is obvious-Elkhorn Minerals’ desire to exercise its ...