Dow Agrosciences LLC; Makhteshim Agan of North America, Inc.; Cheminova, Inc. USA v. National Marine Fisheries Service

UNPUBLISHED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Petition denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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