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. Neither the Refuge Act,1 nor our precedents command that conclusion. The trial court did not err. I dissent.
The Service “need not be justified to a high degree but rather justified in substance or in main — that is, justified to a degree that could satisfy a reasonable person.” Bay Area Peace Navy v. United States, 914 F.2d 1224, 1230 (9th Cir.1990). The majority states that in light of Reiswig’s report, the Service’s actions were not substantially justified. The Reiswig memorandum can not bear the weight that the majority places upon it. Reiswig did not state that any grazing would be incompatible with the purpose of the Refuge. He merely criticized “current practices”. Moreover, in his deposition, Reiswig testified that he and his supervisors determined that grazing could be compatible with the purposes of the Refuge if properly managed.' He testified that he and *390his supervisors met to discuss the application of new management techniques. Thus, the Reiswig memorandum, especially taken together with his deposition testimony, does not support the majority’s conclusion that the Service ignored a warning that one of its practices was illegal.. The Service recognized a problem and began taking steps to correct it. The district court found that the Service’s actions were substantially justified. The majority improperly substitutes its judgment for that of the district court. See Thomas v. Peterson, 841 F.2d 332, 334 (9th Cir.1988).2
The Refuge Act does not specify that the Service has a duty to make a compatibility determination to permit the continuation of a preexisting use of the Refuge. See 16 U.S.C. § 668dd(d)(1)(A). The majority holds that the Act required the Service to complete a compatibility analysis before permitting any more grazing, a practice that had been permitted on the Refuge since 1936. I find a complete absence of authority to support the requirement. Without plain language or precedent to alert the Service to its “duty” under the Act, the Service was not unreasonable for continuing an age old practice while it formulated alternatives. Even if the majority’s interpretation of the Act — announced today for the first time — is correct, I would still find that the Service was substantially justified in its actions. See Bay Area Peace Navy, 914 F.2d at 1231 (holding that the absence of adverse precedent supports finding that the government was substantially justified).
For the same reasons, I would find that the Service was substantially justified in not preparing an Environmental Impact Statement before renewing any grazing permits.3 Basing its decision on the Service’s purported failure to comply with the Refuge Act, the majority does not address the Service’s responsibility under NEPA. If it had, it would have needed to explain our decisions in which we have held that the government need not prepare an EIS for ongoing programs unless they “rise to the level of major federal actions .... ” Upper Snake River Chapter of Trout Unlimited v. Hodel, 921 F.2d 232, 236 n. 3 (9th Cir.1990) (periodic adjustments of water flow are part of ongoing operation of dam); see also Burbank Anti-Noise Group v. Goldschmidt, 623 F.2d 115, 116 (9th Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981) (holding that an EIS is not required when “the proposed federal action will effect no change in the status quo.”). The Service was justified in relying on our precedents. The majority fails to explain why our rationale for not requiring an EIS for ongoing operations under NEPA does not also apply to the compatibility analysis required by the Refuge Act.4
On the basis of a single memorandum, without benefit of trial, the majority confidently holds that the Service has breached its duty. I am troubled by the perverse incentives created by this holding and the adverse consequences it will have beyond this case. The majority tells all government agencies that if they discover a problem- with one of their programs,- they should never discuss it openly and frankly. If one member of an agency expresses an opinion, and the government does not immediately adopt his position, a court may later find that the agency illegally “disregarded” his advice. That is not and should not be the law.
The district court found that the Service’s actions were substantially justified. I would affirm the district court’s sound judgment.
. 16 U.S.C. § 668dd (1988).
. The district court did not explicitly find that the Service's underlying actions were substantially justified. However, its finding that the Service had "identified a problem with grazing on the refuge and was responding appropriately” suggests that it found both the Service's actions and its litigation strategy substantially justified.
. The National Environmental Policy Act, 42 U.S.C. §§ 4321-4361 (1988), requires government agencies to prepare an EIS before undertaking major projects affecting the environment. Id. at § 4432(C).
.The court's holding, with which I agree, that' the Wilderness Society is a "prevailing party” does not imply that the Service violated the Refuge Act or NEPA. It merely means that the Wilderness Society's suit was not "frivolous, unreasonable or groundless.” Sablan v. Department of Finance, 856 F.2d 1317, 1327 (9th Cir.1988) (quotations omitted).