**UN PUBLISHED** 
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 Ass istant 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; DE FENDERS OF WILDLIFE; AMERICAN BIRD CONSERVANCY, Amici Supporting Respondent s .

On Petition for Writ of Mandamus. (8:09

- cv - 00824

- AW)

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

Before NI EMEYER, SHEDD, and AGEE , Circuit Judges.

Petition denied by unpublished per curiam opinion.2 **ARGUED** : David Burton Weinberg, WILEY REIN, LLP, Washington, D.C., for Petitioners.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, Was hington, 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, Am anda W. Goodin, EARTHJUSTICE, Seattle, Washington, for Amici Supporting Respondents.

Unpublished opinions are not binding precedent in this circuit.3 PER CURIAM: The petitioners, three pesticide manufacturers holding registrations from the Environmenta l Protection A g ency for the sale and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 c oncluding that th os e 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 E ndangered Species Act , 16 U.S.C. § 1536(a) ( 2). T he 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 di strict court’s order dismissing the petitioners’ suit under t he Administrative
Procedure Act and remand the case for further proceedings in the district court.4 It is well established that “ mandamus is a drastic remedy that should only be used in extraordi nary 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 provid ed the plaintiffs with an “adequate means of attain[ing] the relief [they] desire[].” United States ex rel. Rahman v. Oncology Assocs

. P.C.

For the foregoing reasons, we deny the petition. , 198 F.3d 502, 5 11 (4th Cir. 1999). Moreover, b ecause mandamus is an extraordinary remedy, a voiding potential dela y in reviewing the biological opinion is not sufficient to warrant issuance of the writ in th is case

.

PETITION DENIED