UNPUBLISHED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.

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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Petition denied by unpublished per curiam opinion.
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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Unpublished opinions are not binding precedent in this circuit.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.

For the foregoing reasons, we deny the petition.

, 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.

PETITION DENIED