                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-1941


DOW AGROSCIENCES LLC; MAKHTESHIM       AGAN   OF   NORTH    AMERICA,
INC.; CHEMINOVA, INC. USA,

                Petitioners,

           v.

NATIONAL MARINE FISHERIES SERVICE; JAMES W. BALSIGER, Acting
Assistant Administrator of the National Marine Fisheries
Service,

                Respondents.

------------------------------

NORTHWEST COALITION FOR ALTERNATIVES TO PESTICIDES; PACIFIC
COAST FEDERATION OF FISHERMEN’S ASSOCIATIONS; INSTITUTE FOR
FISHERIES RESOURCES; DEFENDERS OF WILDLIFE; AMERICAN BIRD
CONSERVANCY,

                Amici Supporting Respondents.



                On Petition for Writ of Mandamus.
                       (8:09-cv-00824-AW)


Argued:   October 27, 2010                    Decided:     March 2, 2011


Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.


Petition denied by unpublished per curiam opinion.
ARGUED:    David Burton Weinberg, WILEY REIN, LLP, Washington,
D.C., for Petitioners.     Robert Parke Stockman, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents.         ON
BRIEF:   Eric Andreas, WILEY REIN, LLP, Washington, D.C.; David
Menotti, Warren U. Lehrenbaum, PILLSBURY WINTHROP SHAW PITTMAN
LLP, Washington, D.C.; Christopher Landau, Michael D. Shumsky,
Aaron Nielson, KIRKLAND & ELLIS, LLP, Washington, D.C., for
Petitioners.    Ignacia S. Moreno, Assistant Attorney General,
Michael T. Gray, Pamela B. Lawrence, Environmental & Natural
Resources   Division,   UNITED   STATES   DEPARTMENT   OF   JUSTICE,
Washington, D.C., for Respondents.      Stephen D. Mashuda, Amanda
W.   Goodin,   EARTHJUSTICE,   Seattle,    Washington,   for   Amici
Supporting Respondents.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       The    petitioners,       three        pesticide       manufacturers          holding

registrations from the Environmental Protection Agency for the

sale and use of the insecticides chlorpyrifos, diazinon, and

malathion, filed a petition in this court for the issuance of a

writ    of   mandamus      directed      to       the    National       Marine     Fisheries

Service, which issued a biological opinion concluding that those

insecticides will kill or damage Pacific salmonids and their

habitat.      The petition asks us to require the Fisheries Service

to set aside its biological opinion and, in issuing a new one,

to consider all the data and utilize “the best scientific and

commercial      data      available,”       as      required       by     the     Endangered

Species Act, 16 U.S.C. § 1536(a)(2).                     The petitioners have filed

this    petition     as    an   alternative             to   their      appeal     from   the

district court’s order dismissing their action to review the

biological         opinion      in    the          district        court         under    the

Administrative Procedure Act, 5 U.S.C. § 704.

       In    Dow    Agrosciences      LLC         v.    National        Marine     Fisheries

Service, No. 09-1968, ___ F.3d ___ (4th Cir. Mar. 2, 2011),

which   we    also   decide     today,    we       reverse     the      district     court’s

order dismissing the petitioners’ suit under the Administrative

Procedure Act and remand the case for further proceedings in the

district court.



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       It is well established that “mandamus is a drastic remedy

that should only be used in extraordinary circumstances and may

not be used as a substitute for appeal.”             In re Lockheed Martin

Corp., 503 F.3d 351, 353 (4th Cir. 2007).                  By reversing and

remanding    Dow   Agrosciences    LLC     v.   National   Marine   Fisheries

Service to the district court, we have provided the plaintiffs

with    an   “adequate   means    of     attain[ing]   the    relief   [they]

desire[].”     United States ex rel. Rahman v. Oncology Assocs.

P.C., 198 F.3d 502, 511 (4th Cir. 1999).                   Moreover, because

mandamus is an extraordinary remedy, avoiding potential delay in

reviewing the biological opinion is not sufficient to warrant

issuance of the writ in this case.

       For the foregoing reasons, we deny the petition.


                                                             PETITION DENIED




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