AZ vs. CA:19 California Exhibits, Vol. XIX; Nos. 4000-4044

page III-42

the Department would not be warranted in holding that desert land applications must be rejected as a matter of law because the applicants intend to rely upon percolating water for reclamation. This does not mean, of course, that applications cannot be rejected in the exercise of the Secretary's authority *[70] under section 7 of the Taylor Grazing Act, as* amended (43 U.S.C., 1952 ed., sec. 315f)> to classify land as suitable or not suitable for desert land entry if he determines that there is an insufficient supply of percolating water to enable the reclamation of the entries, taking into consideration the rights and needs of other lands for such percolating water. The Director's decision of February 21, 1956, had sustained the classification of the land in the appellants' applications as being suitable for desert land entry. This decision was vacated on April 2, 1956, solely on the ground that under California law the right to use percolating water to reclaim a desert land entry is not a right based upon prior appropriation. In view of the conclusion reached in the instant proceeding, it is apparent that the decision of April 2, 1956, must be reversed as to the three appellants, which will leave the decision of February 21, 1956, operative as to them. Therefore, pursuant to the authority delegated to the Solicitor by the Secretary of the Interior (sec. 23, Order No. 2509, as revised; 17 F. R. 6794), the Acting Director's decision of April 2, 1956, is reversed as to the three appellants and the 111-42