Babbitt

dissenting.

I concur in Part I of the majority’s opinion. I also agree with its finding in Part II that the Service’s litigation position was substantially justified. I disagree, however, with the majority’s conclusion that the trial court erred in holding that the Service was substantially justified in taking the actions that gave rise to the underlying suit.

' The majority asserts that the Service renewed annual grazing permits “without regard” to the incompatibility of grazing with the Refuge’s purposes. The Service did not ignore the problems posed by grazing. It began to develop a comprehensive management plan for the Refuge in 1989. It began collecting biological data and holding public meetings on the effects of grazing before the Wilderness Society filed suit. The majority does not argue that these facts, determined by the district court, are clearly erroneous. Rather, the majority holds that once the Refuge Manager, Barry Reiswig, expressed his opinion that the current grazing practices were incompatible with the Refuge’s purposes, the Service had only one reasonable choice: immediately stop issuing and renewing grazing permits and conduct a compatibility analysis.…

Appellants (collectively “the Wilderness Society”) appeal the denial of their application for attorneys’ fees pursuant to the Equal Access to Justice Act (“the EAJA”). 28 U.S.C. § 2412 (d)(1)(A). The Wilderness Society maintains that the district court abused its discretion in finding: (1) that the Wilderness Society was not a “prevailing party” within the meaning of the EAJA, and (2) that the Service’s position was substantially justified. We reverse.

Background

The present action for attorneys’ fees stems from a citizen’s enforcement suit against appellees (collectively “the Service”). The Wilderness Society claimed that the Service violated the National Environmental Policy Act (“NEPA”) by faffing to examine the effects of cattle grazing on the Hart Mountain Refuge (“the Refuge”) and to dis-, close such findings in an Environmental Impact Statement (“EIS”).' Furthermore, the Service.allegedly violated the National Wildlife Refuge System Administration Act (“the Refuge Act”), Executive Order 7528, the Migratory Bird Conservation Act, the Wilderness Act, the Administrative Procedure Act, and Fish & Wildlife Service guidelines by faffing to prepare compatibility determinations…