Cite as: 520 U. S. 154 (1997)
Opinion of the Court
difficult to conclude that petitioners have met their burden— which is relatively modest at this stage of the litigation—of alleging that their injury is "fairly traceable" to the Service's Biological Opinion and that it will "likely" be redressed— i. e., the Bureau will not impose such water level restrictions—if the Biological Opinion is set aside.
B
Next, the Government contends that the ESA's citizen-suit provision does not authorize judicial review of petitioners' claims. The relevant portions of that provision provide that
"any person may commence a civil suit on his own behalf— "(A) to enjoin any person, including the United States and any other governmental instrumentality or agency . . . who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof; or
. . . . .
"(C) against the Secretary [of Commerce or the Interior] where there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary with the Secretary." 16 U. S. C. § 1540(g)(1).
The Government argues that judicial review is not available under subsection (A) because the Secretary is not "in violation" of the ESA, and under subsection (C) because the Secretary has not failed to perform any nondiscretionary duty under § 1533.
1
Turning first to subsection (C): that it covers only violations of § 1533 is clear and unambiguous. Petitioners' first and second claims, which assert that the Secretary has violated § 1536, are obviously not reviewable under this provision. However, as described above, the third claim alleges
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