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DOW AGROSCIENCES LLC v. NATIONAL MARINE FISHERIES

No. 09-1968.

637 F.3d 259 (2011)

DOW AGROSCIENCES LLC; Makhteshim Agan of North America, Inc.; Cheminova, Inc. USA, Plaintiffs-Appellants, v. NATIONAL MARINE FISHERIES SERVICE; Eric C. Schwaab, Defendants-Appellees.

United States Court of Appeals, Fourth Circuit.

Decided: March 2, 2011.

Attorney(s) appearing for the Case

ARGUED: Christopher Landau , Kirkland & Ellis, LLP, Washington, D.C., for Appellants. Robert Parke Stockman , United States Department of Justice, Washington, D.C., for Appellees. ON BRIEF: David B. Weinberg , Eric Andreas , Wiley Rein LLP, Washington, D.C.; David Menotti , Warren U. Lehrenbaum , Pillsbury Winthrop Shaw Pittman LLP, Washington, D.C.; Michael D. Shumsky , Kirkland & Ellis, LLP, Washington, D.C., for Appellants. Ignacia S. Moreno , Assistant Attorney General, Andrew C. Mergen , Michael T. Gray , Meredith L. Flax , Pamela B. Lawrence , Environmental & Natural Resources Division, United States Department of Justice, Washington, D.C., for Appellees.

Reversed and remanded by published opinion. Judge NIEMEYER wrote the opinion, in which Judge SHEDD and Judge AGEE joined.

OPINION

NIEMEYER, Circuit Judge:

The question presented by this appeal is whether a "biological opinion" issued by the National Marine Fisheries Service to the Environmental Protection Agency (EPA) pursuant to the Fisheries Service's consulting role under the Endangered Species Act is subject to judicial review in the district court under the Administrative Procedure Act (APA), 5 U.S.C. § 704. The Fisheries Service, which provided the biological opinion...

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