Indian Water Rights Settlements

Summary: In the second half of the 19th century, the federal government pursued a policy of confining Indian tribes to reservations. These reservations were either a portion of a tribe's aboriginal land or an area of land taken out of the public domain and set aside for a tribe. The federal statutes and treaties reserving such land for Indian reservations typically did not address the water needs of these reservations, a fact that has given rise to questions and disputes regarding Indian reserved water rights. Dating to a 1908 Supreme Court ruling, courts generally have held that many tribes have a reserved right to water sufficient to fulfill the purpose of their reservations and that this right took effect on the date the reservations were established. This means that, in the context of a state water law system of prior appropriations, which is common in many U.S. western states, many tribes have water rights senior to those of non-Indian users with water rights and access established subsequent to the Indian reservations' creation. Although many Indian tribes hold senior water rights through their reservations, the quantification of these rights is undetermined in many cases.

Summary: Tribes have pursued quantification of their water rights through both litigation and negotiated settlements. The settlements involve negotiation between tribes, the federal government, states, water districts, and private water users, among others. They aim to resolve conflict between rights holders and allow the parties to determine specific terms of water allocation and use with certainty. Over the last 50 years, negotiated settlements have been the preferred course for most tribes because they are often less lengthy and costly than litigation. Additionally, many stakeholders have noted that these negotiated agreements are more likely to allow tribes not only to quantify their water rights on paper but also to procure access to these resources in the form of infrastructure and other related expenses, at least in some cases.

Summary: After being negotiated, approval and implementation of Indian water rights settlements require federal action. As of 2019, 36 Indian water rights settlements had been federally approved, with total costs in excess of $5.8 billion. Of these, 32 settlements were approved and enacted by Congress and 4 were administratively approved by the U.S. Departments of Justice and the Interior. After being congressionally authorized, federal projects associated with approved Indian water rights settlements generally have been implemented by the Bureau of Reclamation or the Bureau of Indian Affairs (both within the Department of the Interior), pursuant to congressional directions. Congress has appropriated discretionary and mandatory funding (and, in some cases, both) for these activities, including in recent appropriations bills. In the 116th Congress, H.R. 1904 proposes to extend certain mandatory funds for these settlements in perpetuity (the funding currently expires in FY2029).

Summary: Several individual Indian water rights settlements recently have been considered and enacted, including three that were enacted during the 114th Congress. A primary challenge facing new settlements is the availability of federal funds to implement ongoing and future agreements. Indian water rights settlements often involve the construction of major new water infrastructure to allow tribal communities to access water they hold rights to, and obtaining federal funding for these projects can be difficult. As a result, some settlements have been renegotiated to reduce their federal costs.

Summary: At issue is under what circumstances (if any) Congress should approve new Indian water rights settlements and whether Congress should fund (and in some cases amend) existing settlements. Some argue that resolution of Indian water rights settlements is a mutually beneficial means to resolve long-standing legal issues, provide certainty of water deliveries, and reduce the federal government's liability. Others argue against authorization and funding of new settlements, either on general principle or with regard to specific individual settlements and activities.

Since 1978, the federal government has entered into 36 water rights settlements with 40 individual Indian tribes. These Indian water rights settlements are a means of resolving ongoing disputes related to Indian water rights between tribes, federal and state governments, and other parties (e.g., water rights holders). The federal government is involved in these settlements pursuant to its tribal trust responsibilities. Many of these settlements have been authorized by Congress to provide funding for projects that allow tribes to access and develop their water resources. At issue for Congress is not only the new settlements completing negotiations but also how well the current process for negotiating and recommending settlements for authorization is working. Some of the challenges raised by these settlements pertain to satisfying the federal trust responsibility related to tribal water rights, the provision of federal funding associated with the universe of these settlements, and the principles and expectations guiding ongoing and future negotiation of new settlements and renegotiation of past settlements.

This report provides background on Indian water rights settlements and an overview of the settlement process. It provides background on Indian water rights, describes the settlement process, and summarizes enacted and potential settlements to date. It also analyzes issues related to Indian water rights, with a focus on the role of the federal government and challenges faced in negotiating and implementing Indian water rights settlements. Finally, it focuses on settlements in a legislative context, including enacted and proposed legislation.

Indian water rights are vested property rights and resources for which the United States has a trust responsibility. The federal trust responsibility is a legal obligation of the United States dictating that the federal government must protect Indian resources and assets and manage them in the Indians' best interest. Historically, the United States has addressed its trust responsibility by acting as trustee in managing reserved lands, waters, resources, and assets for Indian tribes and by providing legal counsel and representation to Indians in the courts to protect such rights, resources, and assets. Specifically in regard to Indian water rights settlements, the United States has fulfilled its trust responsibility to Indian tribes by assisting tribes with their claims to reserved water rights through litigation, negotiations, and/or implementation of settlements.

The specifics of Indian water rights claims vary, but typically these claims arise out of the right of many tribes to water resources dating to the establishment of their reservations. Indian reserved water rights were first recognized by the Supreme Court in Winters v. United States in 1908. Under the Winters doctrine, when Congress reserves land (i.e., for an Indian reservation), Congress implicitly reserves water sufficient to fulfill the purpose of the reservation.

In the years since the Winters decision, disputes have arisen between Indians asserting their water rights and non-Indian water users, particularly in the western United States. In that region, the establishment of Indian reservations (and, therefore, of Indian water rights) generally predated settlement by non-Indians and the related large-scale development by the federal government of water resources for non-Indian users. In most western states, water allocation takes place under a system of prior appropriation in which water is allocated to users based on the order in which water rights were acquired. Under the Winters doctrine and the western system of prior appropriation, the water rights of tribes often are senior to those of non-Indian water rights holders because Indian water rights generally date to the creation of the reservation. However, despite the priority of Indian reserved water rights, non-Indian populations frequently have greater access to and allocations of water through infrastructure. This discrepancy leads to disputes that typically have been litigated or, more recently, resolved by negotiated settlements.

Litigation of Indian water rights is a costly process that may take several decades to complete. Even then, Indian water rights holders may not see tangible water resources and may be awarded only paper water —that is, they may be awarded a legal claim to water but lack the financial capital to develop those water resources. This situation occurs because, unlike Congress, the courts cannot provide tangible wet water by authorizing new water projects and/or water-transfer infrastructure (including funding for project development) that would allow the tribes to exploit their rights.

As a result, negotiated settlements recently have been the preferred means of resolving many Indian water rights disputes. Negotiated settlements afford tribes and other interested stakeholders an opportunity to discuss and come to terms on quantification of and access to tribal water allocations, among other things. These settlements often are attractive because they include terms and conditions that resolve long-standing uncertainty and put an end to conflict by avoiding litigation. However, there remains disagreement among some as to whether litigation or settlements are most appropriate for resolving Indian water rights disputes.

The primary issue regarding settlement for Indian reserved water rights is quantification —identifying the amount of water to which users hold rights within the existing systems of water allocation in various areas in the West. However, quantification alone often is not sufficient to secure resources for tribes. Thus, the negotiation process frequently also involves provisions to construct water infrastructure that increases access to newly quantified resources. In addition to providing access to wet water, some negotiated settlements have provided other benefits and legal rights aligned with tribal values. For instance, some tribal settlements have included provisions for environmental protection and restoration.

The federal government's involvement in the Indian water rights settlement process is guided by a 1990 policy statement established during the George H. W. Bush Administration, "Criteria and Procedures for the Participation of the Federal Government in Negotiations for the Settlement of Indian Water Rights Claims" by the Working Group on Indian Water Settlements (Working Group) from the Department of the Interior (DOI). DOI adopted the criteria and procedures in 1990 to establish a framework to inform the Indian water rights settlement process and expressed the position that negotiated settlements, rather than litigation, are the preferred method of addressing Indian water rights. As discussed in the below section " Steps in Settlement Process ," the primary federal entities tasked with prenegotiation, negotiation, and implementation duties for Indian water rights settlements are DOI, the Department of Justice (DOJ), and the Office of Management and Budget (OMB).

DOI has the majority of responsibilities related to participating in and approving Indian water rights settlements. Within DOI, two entities coordinate Indian water settlement policy. First, the Working Group on Indian Water Settlements, established administratively in 1989 and comprised of all Assistant Secretaries and the Solicitor (and typically chaired by a counselor to the Secretary or Deputy Secretary), is responsible for making recommendations to the Secretary of the Interior regarding water rights settlements, including overarching policy guidance for settlements. Second, the Secretary of the Interior's Indian Water Rights Office (SIWRO) is responsible for oversight and coordination of Indian water rights settlements, including interfacing with negotiation and implementation teams for individual settlements, as well as tribes and other stakeholders. The SIWRO is led by a director who reports to the chair of the Working Group.

DOI also appoints teams to work on individual Indian water rights settlements during the various stages of the settlement process (see below section, " Steps in Settlement Process "). Each team includes a chairman who is designated by the chair of the Working Group (i.e., the counselor to the Secretary) and who represents the Secretary in all settlement activities. Federal teams typically are composed of representatives from the Bureau of Indian Affairs (BIA), Bureau of Reclamation (Reclamation), U.S. Fish and Wildlife Service, Office of the Solicitor, and DOJ. The teams explain general federal policies on settlement and, when possible, help to develop the parameters of a particular settlement.

Broadly speaking, there are four steps associated with Indian water rights settlements: prenegotiation, negotiation, settlement, and implementation. The time between negotiation, settlement, and implementation can take several years. Each step, including relevant federal involvement, is discussed below.

Prenegotiation includes any of the steps before formal settlement negotiations begin. This stage includes, in some cases, litigation and water rights adjudications that tribes have taken part in before deciding to pursue negotiated settlements. For instance, one of the longest-running cases in Indian water rights history, New Mexico v. Aamodt , was first filed in 1966; multiparty negotiations began in 2000 and took more than a decade to complete.

The federal government also has its own prenegotiation framework that may involve a number of phases, such as fact-finding, assessment, and briefings. More information on these roles (based on DOI's "Criteria and Procedures" statement) is provided below.

The fact-finding phase of the federal prenegotiation process is prompted by a formal request for negotiations with the Secretary of the Interior by Indian tribes and nonfederal parties. During this time, consultations take place between DOI and DOJ, which examine the legal considerations of forming a negotiation team. If the Secretary decides to establish a team, OMB is notified with a rationale for potential negotiations (based on potential litigation and background information of the claim). No later than nine months after notification, the team submits a fact-finding report containing background information, a summary and evaluation of the claims, and an analysis of the issues of the potential settlement to the relevant federal entities (DOI, DOJ, and OMB).

During the second phase, the negotiating team works with DOJ to assess the positions of all parties and develops a recommended federal negotiating position. The assessment should quantify all costs for each potential outcome, including settlement and no settlement. These costs can range from the costs for litigation to the value of the water claim itself.

During the third phase, the Working Group on Indian Water Settlements presents a recommended negotiating position to the Secretary. In addition to submitting a position, the working group recommends the funding contribution of the federal government, puts forth a strategy for funding the contribution, presents any views of DOJ and OMB, and outlines positions on major issues expected during the settlement process.

The actual negotiations process (see " Negotiation ," below) is the next phase for the Working Group on Indian Settlements, in which OMB and DOJ are updated periodically. If there are proposed changes to the settlement, such as in cost or conditions, the negotiating position is revised following the procedures of the previous phases.

The negotiation phase can be prolonged and may take years to resolve. During this process, the federal negotiation team works with the parties to reach a settlement. The process generally is overseen by the aforementioned DOI offices, as well as by the BIA's Branch of Water Resources and Water Rights Negotiation/Litigation Program, which provide technical and factual work in support of Indian water rights claims and financial support for the federal government to defend and assert Indian water rights. Reclamation's Native American Affairs Program also facilitates the negotiation of water rights settlements by providing technical support and other assistance. In 2016, OMB issued guidance that it be more involved in the negotiation process, and it has laid out a set of requirements for DOI and DOJ to provide regular written updates on individual settlements.

Once the negotiation phase has been completed and parties have agreed to specific terms, the settlement is typically presented for congressional authorization (as applicable). In these cases, Congress typically must enact the settlement for it to become law and for projects outlined under the settlement to be eligible for federal funding. If Congress is not required to approve the settlement, the settlements generally may be approved administratively by the Secretary of the Interior or the U.S. Attorney General or judicially by judicial decree.

Once a settlement is approved (either administratively or by Congress), the SIWRO oversees its implementation through federal implementation teams. Federal implementation teams function much like federal negotiation teams, only with a focus on helping the Indian tribe(s) and other parties implement the settlement.

For settlements that began through litigation or adjudication, the settlement parties must reconvene to reconcile the original agreement with the settlement, along with any additional changes. After the Secretary of the Interior signs the revised agreement, the adjudication court conducts an inter se process in which it hears objections from any party. Once the court approves the settlement, it enters a final decree and judgment. The actual implementation usually is carried out by one or more federal agencies (typically Reclamation or BIA, based on terms of the agreement) that act as project manager.

Altogether, the "Criteria and Procedures" statement stresses that the cost of settlement should not exceed the sum of calculable legal exposure and any additional costs related to federal trust responsibility and should promote comity, economic efficiency, and tribal self-sufficiency. Funding for the settlement itself typically is provided through Reclamation and/or BIA. However, in some cases other agencies contribute based on the particular terms of a settlement.

Status of Individual Indian Water Rights Settlements

The federal government has been involved with Indian water rights settlements through assessment, negotiation, and implementations teams (for enacted settlements) since 1990. As of 2018, there were 21 ongoing negotiation teams working on settlements projected to cost more than $2 billion. Additionally, there are 23 implementation teams active for carrying out approved settlements. Overall, the federal government has entered into 36 settlements since 1978, with Congress enacting 32 of these settlements. The remaining settlements were approved administratively by the Secretary of the Interior or the U.S. Attorney General or by judicial decree.

Table 1 below lists enacted settlements as of the date of this report, while Table 2 lists negotiation teams as of 2017 (the last time this information was made available).

Issues in the Consideration of Indian Water Rights Settlements

Once the stakeholders have agreed to initiate negotiation of a settlement, a number of issues may pose challenges to a successful negotiation and implementation of a settlement. Such challenges may include defining and finding a source of adequate funding for a settlement and contending with other issues within settlements, such as compliance with environmental regulations and identification of sources and conditions for water delivery. Congress may be asked to weigh in on one or more of these issues as they are considered.

Considerations in Funding Indian Water Rights Settlements

The delivery of wet water (as opposed to paper water) to tribes that have enacted settlement agreements frequently requires significant financial resources and long-term investments by the federal government, often in the form of new projects and infrastructure. For federal policymakers, a widely recognized challenge is identifying and enacting federal funding to implement settlements while also resulting in cost-savings relative to litigation. In response to concerns related to implementation costs, some settlements have been renegotiated over time to decrease their estimated federal costs. For instance, legislation to authorize the Blackfeet Compact was first introduced in 2010 and was subsequently renegotiated and revised, resulting in a reduction to estimated federal costs by approximately $230 million (nominal dollars) compared to the version of this legislation that was introduced in 2016. Partially in response to concerns related to justifying the costs of proposed settlements, OMB issued a memo to DOI and DOJ on June 23, 2016, outlining new steps that would provide for greater involvement by OMB earlier in the settlement negotiation process. OMB also stated that it would require, among other things, a description and quantification of the costs and benefits of proposed settlements by DOI and DOJ prior to a formal letter of Administration position.

After a preferred federal contribution is identified and agreed upon, other challenges include identifying the source and structure of federal funding proposed for authorization. Recent congressionally authorized Indian water rights settlements have been funded in various ways, including through discretionary funding authorizations (i.e., authorizations that require annual appropriations by Congress); direct or mandatory funding (i.e., spending authorizations that do not require further appropriations); and combinations of both. In regard to mandatory funding, some settlements have been funded individually and several others have been funded with mandatory spending from a single account, the Reclamation Water Settlements Fund (see " Combined Mandatory/Discretionary Funding ," below). Additionally, some have tapped preexisting or related federal receipt accounts as the source for mandatory funding. The timing of the release of funds also has varied widely among settlements and may in some cases depend on expected future actions (e.g., contingent on completion of plans and/or certain nonfederal activities).

Selected examples of how recent Indian water rights settlements have been funded are discussed below. These sections describe different structural approaches to funding Indian water rights settlements that have been approved by Congress in the past, including when and how the funding is expected to be released (if applicable). They also discuss another source that is sometimes mentioned in this context, the DOJ Judgment Fund in the Department of the Treasury.

Discretionary spending, or spending that is subject to appropriations, historically has been the most common source of funding for congressionally approved Indian water rights settlements. In many cases, Congress has authorized the appropriations of specific sums for individual settlements, including individual funds within the settlement. For example, the Pechanga Band of Luiseño Mission Indians Water Rights Settlement Act ( P.L. 114-322 , Title III, Subtitle D) approved the Pechanga Water Rights Settlement. This legislation established the Pechanga Settlement Fund and four accounts within it: (1) Pechanga Recycled Water Infrastructure account; (2) Pechanga ESAA Delivery Capacity account; (3) Pechanga Water Fund account; and (4) Pechanga Water Quality account. These accounts are authorized to receive future discretionary appropriations from Congress totaling to $28.5 million, and the funds must be spent by April 30, 2030.

Congress also has chosen to authorize discretionary appropriations of "such sums as may be necessary" at times. For instance, the Colorado Ute Settlement Act Amendments of 2000 (Title III, P.L. 106-554 ) authorized the implementation and the operations and maintenance of the Animas-La Plata project and authorized Reclamation to construct these facilities using such sums as may be necessary.

Two major pieces of settlement legislation in the 111 th Congress authorized a combination of mandatory and discretionary spending for Indian water rights settlement and are discussed below.

Omnibus Public Land Management Act of 2009 (P.L. 111-11)

Title X of the Omnibus Public Land Management Act of 2009 ( P.L. 111-11 ) authorized mandatory spending for accounts with broadly designated purposes aligning with Indian water rights settlements. It also included discretionary funding for a number of settlements. This legislation created a new Treasury Fund, the Reclamation Water Settlements Fund, and scheduled funds to be deposited and available in this account beginning in 2020. The act directed the Secretary of the Treasury to deposit $120 million into the fund for each of the fiscal years 2020 through 2029 (for a total of $1.2 billion). The fund may be used to implement a water rights settlement agreement approved by Congress that resolves, in whole or in part, litigation involving the United States, and it may be used if the settlement agreement or implementing legislation requires Reclamation to provide financial assistance for or to plan, design, or construct a water project. The act also assigned tiers of priority to access these funds in the following order:

First-tier priority is assigned to the Navajo-Gallup Water Supply Project (a key element of the Navajo Nation Water Rights Settlement), the Aamodt Settlement, and the Abeyta Settlement; and Second-tier priority is assigned to the settlements for the Crow Tribe, the Blackfeet Tribe, and the Tribes of the Fort Belknap reservation, as well as the Navajo Nation in its water rights settlement over claims in the Lower Colorado River basin.

If Congress does not approve and authorize projects that are given priority under the legislation by December 31, 2019, the amounts reserved for the priorities are to revert to the Reclamation Water Settlement Fund for any other authorized use of the fund under the act. Thus, if there were any "leftover" funding, these funds could be available for other authorized Indian water rights settlements. The fund itself is scheduled to terminate on September 30, 2034, and the unexpended and unobligated balance of the fund will be transferred to the Treasury at that time.

In addition to the mandatory funds noted above, P.L. 111-11 also authorized $870 million in discretionary appropriations for the Navajo-Gallup project.

Claims Resolution Act of 2010 (P.L. 111-291)

Although P.L. 111-11 provided an appropriation of mandatory funding to be used by several settlements at a future date, provisions in the Claims Resolution Act of 2010 ( P.L. 111-291 ) authorized and provided direct or mandatory spending for four individual water rights settlements. P.L. 111-291 also included discretionary funding for some of these settlements and additional mandatory funding for the Navajo-Gallup project (authorized in P.L. 111-11 ). Among other things, P.L. 111-291

authorized and appropriated approximately $82 million in mandatory funding for the Aamodt Settlement in a newly created Aamodt Settlement Pueblos' Fund and authorized an additional $93 million in discretionary funding subject to appropriations; authorized the Abeyta Settlement, appropriated $66 million in mandatory funds for implementation of that agreement in a newly created Taos Pueblos' Water Development Fund, and authorized an additional $58 million in discretionary funding subject to appropriations; authorized the Crow Tribe Water Rights Settlement, appropriated $302 million in mandatory funding for that agreement, and authorized an additional $158 million in discretionary funding subject to appropriations; authorized the White Mountain Apache Tribe water rights quantification, appropriated mandatory funding of approximately $203 million to multiple sources to carry out that settlement, and authorized an additional $90 million in discretionary appropriations; and authorized and appropriated a total of $180 million from FY2012 to FY2014 in mandatory funding to the Reclamation Water Settlements Fund established under P.L. 111-11 to carry out the Navajo-Gallup Water Supply Project authorized in that same legislation.

Redirection of Existing Receipt Accounts

Other water rights settlements have been funded through additional mechanisms, including redirection of funds accruing to existing federal receipt accounts. These funds may differ from traditional mandatory funds in that they make available funding without further appropriations but they also depend on the amount of funding accruing to such an account. For example, the Arizona Water Settlements Act ( P.L. 108-451 ) authorized water rights settlements for the Gila River Indian Community (GRIC) and the Tohono O'odham Nation, respectively. Both water rights settlements required funding for delivery infrastructure associated with water deliveries from the Central Arizona Project (CAP). To fund these costs, P.L. 108-451 required that certain CAP repayments and other receipts that accrue to the previously existing Lower Colorado River Basin Development Fund (LCRBDF, which averages receipts of approximately $55 million per year) be made available annually, without further appropriation (i.e., mandatory funding) for multiple purposes related to the GRIC and Tohono O'odham settlements. For instance, the bill required that after FY2010, deposits totaling $53 million be made into a newly established Gila River Indian Community Operations Maintenance and Rehabilitation Trust Fund, to assist in paying for costs associated with the delivery of CAP water. In addition to a number of other settlement-related spending provisions, the bill stipulated that up to $250 million in LCRBDF receipts be made available for future Indian water rights settlements in Arizona. However, if sufficient LCRBDF balances are not available for any of the bill's priorities, then funding is to be awarded according to the order in which these priorities appear in the bill.

Another potential source of payment for Indian water rights settlements could be the Judgment Fund, which is a permanent indefinite appropriation available to pay all judgments against the United States that are "not otherwise provided for" by another funding source. Certain criteria must be met for a payment to come out of the Judgment Fund. First, the judgment must be monetary and final, so that payments are not made from the Judgment Fund when there is a chance the award could be changed or overturned. Second, the payment must be certified by the Secretary of the Treasury, who has delegated administration of the Judgment Fund to the Bureau of the Fiscal Service. Finally, payment of the judgment, award, or settlement either must be authorized by certain statutes or must be a final judgment rendered by a district court, the Court of International Trade, or the U.S. Court of Federal Claims. Alternatively, payment can stem from a compromise settlement negotiated by the Attorney General (or any authorized person) if such settlement arises under actual litigation or is in "defense of imminent litigation or suits against the United States."

Many judgments are paid from the Judgment Fund because the operating appropriations of federal agencies are "generally not available to pay judgments."

The government historically has entered into compromise settlements with Indians and Indian tribes on a variety of legal issues, and both the federal district courts and the U.S. Court of Federal Claims generally can hear suits brought by Indian tribes. The Judgment Fund has been used to pay for some of these settlements. For example, Title I of the Claims Resolution Act of 2010 (CRA; P.L. 111-291 ) authorizes and implements the settlement reached in the Cobell v. Salazar litigation. Under the act, Congress directed the Secretary of the Treasury to establish a Trust Land Consolidation Fund and deposit into it $1.9 billion "out of the amounts appropriated to pay final judgments, awards, and compromise settlements" under the Judgment Fund. For purposes of this transfer, the act also states that the statutory conditions of the Judgment Fund have been met. Notably, although the CRA included a number of separate water rights settlements with specific Indian tribes, it appears to have set up other funding mechanisms for the Indian tribes' water rights settlements, as it did not specifically direct payment from the Judgment Fund.

For example, although Title III of the CRA authorized mandatory funding of approximately $203 million to multiple sources to carry out the White Mountain Apache Tribe (WMAT) Water Rights Quantification Agreement and authorized an additional $90 million in discretionary appropriations (see reference to this legislation in the previous section, " Combined Mandatory/Discretionary Funding "), it established various funds from which these moneys could be used. One such fund is the WMAT Settlement Fund, for which Congress authorized $78.5 million to be appropriated to the Secretary of the Treasury. This language indicates that Congress must act separately to appropriate funds so that the Secretary may then transfer $78.5 million into the WMAT Settlement Fund. The CRA established a second fund, the WMAT Maintenance Fund, for which Congress mandated appropriations by directing the Secretary to transfer $50 million "out of any funds in the Treasury not otherwise appropriated." This language indicates that the funds will be transferred, without a separate appropriation, from the U.S. Treasury General Fund, which is "the largest fund in the Government ... [and] is used for all programs that are not supported by trust, special, or revolving funds."

As mentioned above, if there is another source of funding provided for by appropriation or statute, regardless of the actual funding level, then payment from the Judgment Fund is precluded. Courts look for an appropriation that has programmatic specificity, regardless of the agency's use of the funds. For example, if an agency already had spent an appropriated sum on other litigation or expended the money elsewhere (as in many of the above examples of Indian water rights settlements), then payment from the Judgment Fund for all or part of the award may be precluded. Under these circumstances, the agency would have to seek an additional appropriation from Congress . In the future, whether the Judgment Fund may be used for payments related to Indian water settlement agreements seems to depend on the nature of the claim, the substantive law at issue, existing sources of funding, and the forum in which the award is made.

The environmental impact of settlements has been an issue for federal agencies, environmental groups, and tribes, among others. In some cases, construction of settlement projects has been challenged under federal environmental laws, such as the National Environmental Policy Act of 1969 (NEPA; P.L. 91-190), the Clean Water Act (CWA; P.L. 92-500), the Endangered Species Act of 1973 (ESA; P.L. 93-205 ), and the Safe Drinking Water Act ( P.L. 93-523 ). Because some settlements involve construction of new water projects (such as reservoirs, dams, pipelines, and related facilities), some have argued that settlements pose negative consequences for water quality, endangered species, and sensitive habitats.

For example, the Animas-La Plata project, originally authorized in the Colorado River Basin Project Act of 1968 (P.L. 84-485) and later incorporated into the Colorado Ute Water Rights Settlement Act of 1988 ( P.L. 100-585 ), faced opposition from several groups over the alleged violation of various environmental laws. Additionally, the U.S. Environmental Protection Agency raised concerns that the project would negatively affect water quality and wetlands in New Mexico. These and other concerns stalled construction of the project for a decade. The Colorado Ute Settlement Act Amendments of 2000 ( P.L. 106-554 ) amended the original settlement to address these concerns by significantly reducing the size and purposes of the project and codifying compliance to NEPA, CWA, and ESA. Other enacted settlements that initially encountered opposition stemming from environmental concerns include the Jicarilla Apache Tribe Water Settlement Act of 1992 ( P.L. 102-441 ) and the Yavapai-Prescott Indian Tribe Water Rights Settlement Act of 1994 ( P.L. 103-434 ).

In addition to the need to quantify reserved water rights, a key difficulty during the negotiation process is identifying a water source to fulfill reserved water rights. Generally, this is done through reallocating water to tribes from existing sources, as was done for selected tribes in Arizona and the Central Arizona Project under the Arizona Water Settlements Act of 2004 ( P.L. 108-451 ). In some cases, settlements have provided funds for tribes to acquire water from willing sellers. In addition to identifying and quantifying a water source, settlements can address the type of water (i.e., groundwater, surface water, effluent water, stored water) and the types of uses that are held under reserved water rights (e.g., domestic, municipal, irrigation, instream flows, hunting and fish, etc.) as well as water quality issues.

Another common issue addressed within settlements is the question of whether to allow for the marketing, leasing, or transfer of tribal water. Twenty-one of the 32 congressionally enacted settlements permitted some form of marketing, leasing, or transferring, ranging from limited off-reservation leasing to less restrictive forms of marketing. This exchange of water can provide dual benefits of better water reliability in areas of scarce supplies and economic incentives to tribes. At the same time, some tribes and state users oppose any allowance for water marketing in settlements. Some members within tribes object to the exchange of water on religious and cultural grounds, due to the belief that water is fundamentally attached to tribal life and identity. Some non-Indians oppose allowances for water marketing in these agreements when marketing has the potential to increase the price of water that otherwise might be available for free to downstream water users and thus potentially could harm regional economies. As such, negotiating the right to market, lease, or transfer water can be a contentious issue that results in several restrictions to mitigate potential negative impacts.

The certainty of Indian water rights settlements is commonly cited as a multilateral benefit for the stakeholders involved. Supporters regularly argue that mutual benefits accrue as a result of these agreements: tribes secure certainty in the form of water resources and legal protection, local users and water districts receive greater certainty and stability regarding their water supplies, and the federal and state governments are cleared from the burden of potential liability.

Some tribal communities have objected to settlements based on these principles. They have argued that the specific, permanent quantification of their water rights through settlements may serve to limit the abilities of tribes to develop in the future. Similarly, some have argued against settlements as they may limit tribes to a particular set of uses (e.g., agriculture) and prevent potential opportunities for greater economic yields in the future. Some contend that to avoid use-based limitations, water rights settlements should focus on allowing water leasing and marketing (see discussion in " Water Supply Issues ," above) so tribes can control and use their water resources with greater flexibility. Still others have spoken out against the idea of negotiated settlements entirely, as they oppose negotiating their claims in exchange for lesser water rights and money. They view the process as akin to the "first treaty era," when Indian tribes forfeited their lands. They note that in the future, the courts may be more favorable and allow for greater gains through litigation.

Nontribal users also may raise their own concerns with the certainty of water rights settlements. Some water users have complained that provisions in certain settlements have the potential to maintain or even increase uncertainty associated with their water rights. For example, some water users in western Montana have raised concerns that the Confederated Salish and Kootenai Tribes (CSKT) Water Compact recognizes off-reservation water rights with the potential to significantly curtail nontribal water rights beyond those quantified in the CSKT Compact.

Several common questions that are raised often in regard to Indian water rights settlements are discussed below.

Why Is the Federal Government Involved in Indian Water Rights Settlements?

Although settlements essentially act as a quid pro quo relationship among the many stakeholders involved, the federal government's role in all stages of the settlement process serves as a way to fulfill its trust responsibility to the tribes to secure, protect, and manage the tribes' water rights. Furthermore, many tribes have breach-of-trust claims against the federal government. Settlements (including those that provide for federal resources and funding for new water infrastructure) provide an opportunity for tribes to formally waive these claims and potentially resolve these disputes.

Has Negotiating Settlements Been Successful?

It is difficult to make broad characterizations of the impact of Indian water rights settlements. As of 2019, the federal government has been involved in the negotiation of more than 50 Indian water rights settlements. As previously noted, 36 of these negotiations have resulted in federal settlements with tribes and others. Whether these settlements have been successful depends in part on the metric used to define success. In most cases, the settlements have secured rights and access (or potential access) to tribal water resources. However, many of the projects to provide this access are ongoing, so it is not possible to characterize their end result for tribes and the federal government. Further, the extent to which settlements eventually achieve their anticipated benefits likely will vary among individual settlements. Some (including both Indian and non-Indian users) who support negotiating settlements in general may disagree with the contents or outcomes of specific settlements. Others may contend that other means (i.e., litigation) are more appropriate for solving these issues.

What Is the Funding Status of Current Enacted Settlements?

Due to the mix of discretionary and mandatory funds involved, it can be difficult to track the funding status of Indian water rights settlements. CRS estimates that as of FY2019, the federal government had appropriated more than $2.9 billion in nominal discretionary funding to implement Indian water rights settlements, plus an additional $4.3 billion in mandatory funds that have been made available or are expected to be made available in future years pursuant to authorizing legislation. These appropriations have been provided to multiple agencies, including Reclamation, BIA, the Bureau of Land Management, and the U.S. Fish and Wildlife Service. The total amount of authorized Indian water rights settlements is not formally tracked by the Administration. In early 2019, DOI estimated that Reclamation had a backlog of $1.3 billion in "authorized but unfunded" Indian water rights settlements. Presumably, any future authorized settlements without associated mandatory funding commitments would add to this total.

What Types of Activities Typically Are Authorized in Indian Water Rights Settlements?

Settlements are negotiated on a case-by-case basis, so the details of each settlement vary and are related to specific issues between tribes and water users in a given area. Generally, most settlements ratify agreements and compacts that have been reached by stakeholders; authorize reallocation and delivery of water from existing sources; and authorize construction and funding for new water projects that are built by Reclamation (and in many cases, transferred to the tribes). In addition to providing access to water, most settlements have resulted in tribal development funds into which the Secretary of the Interior makes scheduled payments for the purpose of economic development and to cover various costs of managing water projects.

As previously stated, quantification and types of use are general issues within settlements, although additional benefits can be prominent factors as well. For example, numerous settlements have been negotiated to include provisions that would establish programs for fish and wildlife protection as well as ecosystem restoration. In other cases, tribes and settlements have focused less on specific quantification and more on securing greater control of their rights or pursuing alternative forms of gaining water rights—for example, P.L. 100-228 approved an agreement that would allow the Seminole Tribe of Florida to administer its water rights and possess jurisdiction to manage its water resources with a water district at no cost to the federal government. In another case, the Zuni Indian Tribe waived certain claims to water to gain federal funds to purchase water rights from willing sellers. And, in many cases, settlements have authorized conditions for water marketing and leasing for tribes, although the degree to which this is allowed varies by settlement.

Recent Indian Water Rights Settlement Legislation

Since 2009, Congress has enacted nine Indian water rights settlements involving 13 tribes, at an authorized federal cost of more than $2 billion. These settlements were enacted in four bills: P.L. 111-291 (The Claims Resolution Act of 2010); P.L. 113-169 (the Pyramid Lake Paiute-Fish Springs Ranch Settlement Act); P.L. 113-223 (the Bill Williams River Water Rights Settlement Act of 2014); and P.L. 114-322 (the Water Infrastructure Improvements for the Nation Act, or WIIN). Several of these settlements, including those enacted by the 113 th Congress and the Choctaw Nation and Chickasaw Nation Water Settlement Act included in WIIN, were not associated with any new federal funding authorizations or appropriations.

An issue related to Indian water rights settlements in recent Congresses has been the circumstances under which this type of legislation is to be transmitted and considered. During the 115th Congress, the chairman of the House Natural Resources Committee sent a letter to the Attorney General and the Secretary of the Interior outlining the committee's process and expectations for considering Indian water rights settlement legislation (this process was similar to that used by the committee dating in the 114 th Congress). These requirements included the following:

A statement by the relevant departments (i.e., DOI and DOJ) affirming that each proposed settlement adheres to current executive branch criteria and procedures. Specific affirmation by the departments that the cost of a settlement to all parties does not exceed the value of the existing claims as calculated by the federal government and that federal contributions do not exceed the sum of calculable legal exposure and federal trust or programmatic responsibilities. Conveyance to a court by DOJ and agreement in writing by all settling parties to the settlement, pending a legislative resolution. Approval in writing by the departments of the legislative text needed to codify the settlement. Consent to being available to testify by DOJ. Listing of the legal claims being settled by both departments.

It is unclear to what extent any of these requirements will continue to apply in the 116 th Congress.

In the 116 th Congress, H.R. 644 and S. 1207 would both approve a settlement resolving water rights claims of the Navajo Nation on the San Juan River in the Upper Colorado River Basin in Utah. It would authorize the Secretary of the Interior to establish a Navajo Water Development Trust Fund and would authorize appropriations (plus any interest on these deposits) for two accounts to be established within the fund:

1. The Navajo Water Development Projects Account, which would be authorized to receive appropriations of $198.3 million, adjusted for inflation, for municipal water supply projects. 2. The Navajo OM&R Account, which would be authorized to receive appropriations of $11.1 million for water supply facility operations and maintenance activities.

In addition, $1 million in nontrust fund appropriations would be authorized for the Department of the Interior to implement the settlements. The bill would reserve tribal access (through the project) to as much as 81,500 acre-feet per year from water sources adjacent to or within the Navajo Nation's reservation in Utah. This depletion would be subtracted from the State of Utah's Colorado River allocation. In return, parties (including the Navajo Nation, the United States, and the State of Utah) would waive and release most claims associated with this settlement. Additionally, the Navajo Nation has agreed to subordinate its water rights under the settlement to existing, non-Indian uses. According to the Navajo Nation, this could result in water shortages for the tribe 11% to 46% of the time when its full 81,500 acre-feet water right is put to use.

Earlier versions of the Navajo Utah Settlement legislation (e.g., introduced versions in the 115 th Congress) adhered to the historically common practice of authorizing funds for Reclamation to construct new water resource facilities for the tribe. However, the fund-based approach evidenced in the current version of the legislation, in which the department would release funds from the Trust Fund to the Navajo Nation for expenditures as needed, represents a notable departure from this model. Advocates of the approach believe it may help to avoid cost overruns and would have the added benefit of supplementing available funds by accumulating interest. While the Navajo Nation supports this approach for this proposed settlement, it is unclear if other tribes with pending water-rights claims would support such a fund-based template for future settlements.

Reclamation Water Settlements Fund Extension

Congress is also considering the extension of mandatory funding for the Reclamation Water Settlement Fund, which was originally enacted in 2009. In the 116 th Congress, H.R. 1904 and S. 886 would both extend the aforementioned $120 million per year in mandatory funds for the Reclamation Water Rights Settlement Fund to make these amounts available in perpetuity. The annual transfer to this fund is currently set to begin in FY2020 and occur annual through FY2029. The bill would allow these transfers to continue, and would not alter the priority tiers laid out currently laid out for the fund. In absence of specific prioritized settlements, funding would be available for other settlement agreements that require the planning, design and construction of water supply infrastructure, project.to rehabilitate existing water delivery systems, or projects restore fish and wildlife habitat affected by Reclamation projects.

Long-standing disputes over water rights and use involving Indian tribes continue to be negotiated and settled by the executive branch and are thus likely to be an ongoing issue for Congress. This matter includes implementation of ongoing Indian water rights settlements, negotiation of new settlements, and consideration of these settlements for potential enactment and subsequent funding. As of the end of the 115 th Congress, 32 settlements had been enacted since 1978, and 4 settlements had been approved administratively. Additional funding for ongoing settlements and authorization of and appropriations for new settlements are likely to be requested in the future. In considering Indian water rights settlements, primary issues for Congress may include the cost, contents, and sufficiency of federally authorized efforts to settle tribal water rights claims, as well as the circumstances under which these settlements are considered and approved by authorizing committees and others (i.e., whether the settlements are accompanied by formal statements of Administration support, cost estimates, etc.). In addition, the preferred extent of federal involvement in implementing settlements, including the question of whether the federal government or tribes should take the lead in developing and constructing projects, may be of interest to Congress.


Joint Light Tactical Vehicle (JLTV): Background and Issues for Congress

Summary: The Joint Light Tactical Vehicle (JLTV) is being developed by the Army and the Marine Corps as a successor to the High Mobility, Multi-Wheeled Vehicle (HMMWV), which has been in service since 1985. On October 28, 2008, awards were made for the JLTV Technology Development (TD) Phase to three industry teams: (1) BAE Systems, (2) the team of Lockheed Martin and General Tactical Vehicle, and (3) AM General and General Dynamics Land Systems.

Summary: On January 26, 2012, the Army issued the Request for Proposal (RFP) for the JLTV's Engineering Manufacturing Development (EMD) phase. Up to three EMD contracts scheduled for June could have been awarded. The period of performance for EMD contracts was 27 months, and the overall EMD phase was scheduled to last 33 months. Vendors were required to provide 22 JLTV prototypes for testing 12 months after contract award. The target cost for the base vehicle was $250,000, excluding add-on armor and other kits.

Summary: On September 3, 2013, the Army began JLTV testing at Aberdeen Proving Ground, MD; Yuma, AZ; and Redstone Arsenal, AL. The Army planned to select a single vendor by 2015, with the first Army brigade being equipped with JLTVs by 2018. FY2015 program plans anticipated a Milestone C (Production and Deployment Phase Approval) decision in the fourth quarter of FY2015, followed by Low Rate Initial Production (LRIP).

Summary: On August 25, 2015, it was announced the Army had awarded Oshkosh a $6.7 billion low rate initial production (LRIP) contract with eight options to procure the initial 16,901 vehicles for the Army and Marines. The JLTV is being produced in Oshkosh, WI.

Summary: It is also reported the Army plans to use the JLTV as the interim platform for its upcoming Light Reconnaissance Vehicle (LRV) program instead of procuring a new system. The British Army is reportedly trying to acquire 2,747 JLTVs through Foreign Military Sales (FMS). The Marines have also reportedly increased their JLTV requirement for a total of 9,091 JLTVs. The Air Force and Navy are also procuring a limited number of JLTVs for use.

Summary: A redacted May 2, 2018, DOD Inspector General (IG) report noted the services have not demonstrated effective test results to prepare the JLTV program for full rate production, but the JLTV Program Office has plans to address this concern. The Director, Operational Test and Evaluation (DOT&E) FY2018 Annual Report notes among other findings that JLTVs are not operationally suitable because of deficiencies in reliability, maintainability, training, manuals, crew situational awareness, and safety. Reportedly, the Army has decided to delay JLTV full-rate production, previously scheduled for December 2018, until the early summer of 2019 in order to assess options for vehicle design changes. On March 14, 2019, Army leadership reportedly announced the Army was lowering its overall requirement for JLTVs by 1,900 vehicles in order to free up funding for modernization.

Summary: The FY2020 Research, Development, Test and Evaluation (RDT&E) and Procurement JLTV budget request for all four services is $1.641 billion for 4,090 vehicles. Potential issues for Congress include (1) the possible examination of the DOD Inspector General's Report and DOT&E's FY2018 Annual Report findings and full-rate JLTV production, (2) the potential consequences of a delayed full-rate JLTV production decision, and (3) implications of the Army's new top-line JLTV requirement.

The JLTV is an Army-led, multiservice initiative to develop a family of future light tactical vehicles to replace many of the High Mobility, Multi-Wheeled Vehicles (HMMWVs) used by the armed services today. HMMWVs, which first entered service in 1985, were developed during the Cold War when improvised explosive devices (IEDs) and other antivehicle explosive devices were not a major factor in military planning. The HMMWVs' demonstrated vulnerability to IEDs and the difficulties and costs experienced in "up-armoring" HMMWVs already in the inventory have led to renewed emphasis on vehicle survivability. DOD officials have emphasized that JLTVs are not intended to replace HMMWVs "one for one."

The JLTV program is a joint Army/Marine Corps effort to develop and produce both vehicles and associated trailers. The JLTV family of vehicles consists of two mission categories: the JLTV Combat Tactical Vehicle (CTV), which seats four passengers, and the JLTV Combat Support Vehicle (CSV), which seats two passengers. The JLTV Combat Tactical Vehicle has a 3,500 lb. payload capacity and comes in three variants:

the General Purpose (GP) variant; the Heavy Guns Carrier (HGC) variant; and the Close Combat Weapon carrier (CCWC) variant.

The JLTV Combat Support Vehicle has a 5,100 lb. payload capacity and comes in one variant: the Utility (UTL) Prime Mover variant, which can accommodate a shelter.

As planned, JLTVs would be mechanically reliable, maintainable (with on-board diagnostics), all-terrain mobile, and equipped to link into current and future tactical data nets. Survivability and strategic and operational transportability by ship and aircraft are also key JLTV design requirements.

The JLTV is an Acquisition Category (ACAT) 1D program. The Army bears the overall responsibility for developing the JLTV through its Joint Program Office, which reports to the Program Executive Office (PEO) for Combat Support & Combat Service Support (PEO CS&CSS) in Warren, MI, which reports to the Assistant Secretary of the Army for Acquisition, Logistics, and Technology (ASA [AL&T]). Marine participation is centered on a program office under the supervision of the Program Executive Officer Land Systems (PEO LS) Marine Corps at Quantico, VA.

In November 2006, the Joint Chiefs of Staff's Joint Requirement Oversight Council (JROC) approved the JLTV program. On December 22, 2007, the Under Secretary of Defense for Acquisition, Technology, and Logistics USD (AT&L) signed an Acquisition Decision Memorandum (ADM) directing the JLTV Program to move from the Concept Refinement Phase into the Technology Development (TD) Phase of the DOD System Acquisition Process. The Army and Marines had intended to issue a Request for Proposal (RFP) for Technology Development Phase as early as October 2007. Concerned with funding adequacy, technical maturity, and shifting requirements, the Pentagon's acquisition executive disapproved the issuance of the RFP and directed the Army and Marines to "go back to the drawing board and develop a robust technology development phase." On February 5, 2008, an RFP for Technology Development Phase was issued to industry. The RFP stated the government desired to award three contracts for the JLTV Technology Development Phase. The RFP stipulated that proposals would be due April 7, 2008, and the TD Phase would last 27 months. Contractors would build four test subconfigurations during the first 15 months, followed by 12 months of testing.

Technology Development Contracts Awarded11

On October 28, 2008, three awards were made for the JLTV TD Phase for a total of $166 million. The three industry teams were (1) BAE Systems Land and Armaments, Ground Systems Division, Santa Clara, CA, and NAVISTAR Defense, Warrenville, IL; (2) General Tactical Vehicles, Sterling Heights, MI—a joint venture between General Dynamics Land Systems and AM General; and (3) Lockheed Martin Systems Integration, Oswego, NY, BAE Systems, Alcoa Defense, Pittsburgh, PA, and JWF Defense Systems, Johnstown, PA.

On November 7 and November 12, 2008, protests were filed with the Government Accountability Office (GAO) against the TD contract awards by the Northrop Grumman-Oshkosh team and the Textron-Boeing-SAIC team alleging there were "unintended discrepancies" in how the government rated bids in terms of the criteria of systems maturity, logistics, and costs. As a result of that protest, work on the JLTV program by the three winning teams was suspended. On February 17, 2009, GAO rejected the JLTV protests and the stop-work orders were lifted.

Change in Requirements, Program Schedule, and Variants13

In February 2011, the JLTV Program Office announced the award of the EMD contract would be delayed until January or February 2012 because the Army changed requirements for the JLTV to have the same level of under-body protection as the Mine-Resistant, Ambush-Protected All-Terrain Vehicle (M-ATV). DOD had planned to award two contracts for the EMD phase, which was scheduled to last 24 months, but instead opted for a 48-month-long EMD phase before awarding Production and Deployment contracts in the second quarter of FY2016. It was decided that there would be two variants—a Combat Tactical Vehicle (CTV), which can transport four passengers and carry 3,500 pounds, and a Combat Support Vehicle (CSV), which can transport two passengers and carry 5,100 pounds.

On January 26, 2012, the Army issued the RFP for the JLTV's EMD Phase. Industry proposals for the EMD contract were to have been filed with the Army by March 13, 2012. The RFP stipulated that up to three EMD contracts could be awarded, and contract award occurred in June 2012. These contracts would be capped at $65 million per contract. The duration of the EMD performance period would be 27 months starting with contract award. Vendors would be required to provide 22 prototypes for testing 12 months after contract award, and the target cost for the base vehicle configuration was $250,000 (FY2011 constant dollars), excluding add-on armor kits and other kits identified in the RFP.

On August 22, 2012, the Army announced the award of three firm-fixed price JLTV EMD contracts totaling approximately $185 million. The three companies awarded the EMD contracts were AM General, LLC (South Bend, IN); Lockheed Martin Corporation (Grand Prairie, TX); and Oshkosh Corporation (Oshkosh, WI). The period of performance was for 27 months, with each contractor receiving initial funding between $28 million and $36 million per contractor, with the balance of funding up to the full contract amount being provided in FY2013 and FY2014. In 12 months, each team was required to deliver 22 prototypes and contractor support for a 14-month comprehensive government testing program, which included blast, automotive, and user evaluation testing. The overall EMD Phase was scheduled to last 33 months. According to the Army, "the EMD Phase is designed to test and prepare the next-generation vehicles for a Limited User Test, Capabilities Production Document and Milestone C procurement decision in FY 2015."

Unsuccessful bidders Navistar Defense, BAE Systems, and General Tactical Vehicles (a team of General Dynamics and AM General) were permitted to continue developing JLTV candidate vehicles at their own risk and expense, if they notified the government within 30 days of the EMD contract award. Reports suggested some bidders considered continuing development of JLTV candidates for submission for production source selection.

Army Releases Final RFP for JLTV Full-Rate Production20

On December 12, 2014, the Army reportedly released the final RFP for JLTV low-rate initial production and full-rate production and gave competitors until February 10, 2016, to refine and submit their bids. The Army—on behalf of itself and the Marines—planned to select a winner and issue a single contract award in late summer 2016.

The winning contractor would build approximately 17,000 JLTVs for the Army and Marines during three years of low-rate initial production, followed by five years of full-rate production. The first Army unit would be equipped with JLTVs in FY2018, and the Army's complete acquisition of JLTVs would be completed in 2040. The Marines would begin acquiring their 5,500 JLTVs at the beginning of production and would be completed by FY2022.

Bids Submitted for JLTV Low-Rate Initial Production (LRIP)21

It was reported that the three companies who were picked in 2012 to build prototypes—Oshkosh, Lockheed Martin, and AM General—submitted their bids for the LRIP contract by the February 10, 2015, deadline. It was also reported that none of the three competitors had said publicly if they included in their proposals an option for the Army to purchase a technical data package for their vehicles. If the Army acquired the technical data package, theoretically the Army could use that data for future production runs, which could enhance competition and possibly result in better prices for the government.

On August 25, 2015, the Army awarded Oshkosh a $6.7 billion low rate initial production (LRIP) contract with eight options to procure the initial 16,901 vehicles for the Army and Marines. The JLTV is to be produced in Oshkosh, WI. A full rate production decision was planned for FY2018, and called for the production of 49,100 JLTVs for the Army and 5,500 for the Marine Corps.

Lockheed Martin Files Protest with the Government Accountability Office (GAO)24

On September 8, 2015, Lockheed Martin reportedly planned a protest with GAO, with a program spokesman stating the following:

After evaluating the data provided at our debrief, Lockheed Martin has filed a protest of the award decision on the JLTV program. We firmly believe we offered the most capable and affordable solution for the program. Lockheed Martin does not take protests lightly, but we are protesting to address our concerns regarding the evaluation of Lockheed Martin's offer.

On September 10, 2015, the Army reportedly issued a stop-work order to Oshkosh, with a GAO spokesman noting, "The Federal Acquisition Regulation requires contracting officers to automatically suspend performance on an awarded contract, following appropriate notification of a protest from GAO." On December 11, 2015, Lockheed Martin informed GAO that it would file its JLTV protest instead with the U.S. Court of Federal Claims. On December 15, 2015, GAO closed Lockheed Martin's protest "without further action." With the GAO protest dismissed, the Army lifted its stop-work order to Oshkosh on December 15, 2015. The U.S. Court of Federal Claims denied Lockheed Martin's stop-work request on February 11, 2016, meaning Oshkosh could continue work associated with the JLTV contract until the court resolved the contract award dispute.

Lockheed Martin Withdraws JLTV Protest from United States Court of Federal Claims30

On February 17, 2016, Lockheed Martin reportedly withdrew its JLTV protest in the U.S. Court of Federal Claims.

On March 22, 2016, the Army reportedly placed a $243 million order with Oshkosh Defense to build 657 JLTVs, as well as 2,977 installation kits and related vehicle support LRIP items. The first JLTVs were delivered in September 2016.

Delay in JLTV Initial Operating Capability (IOC)33

Primarily due to program disruption resulting from the Lockheed Martin protest, the JLTV will not reach IOC in mid-2019 as originally planned. Instead, the Army anticipates a six-month delay in IOC until the end of 2019, and the Marine Corps IOC, originally expected for the fourth quarter of FY2018, will now be a year later in the first quarter of FY2020. Although these delays are significantly longer than the protest period, officials from both services noted their respective IOCs were adjusted to reflect delays in scheduled testing.

Army Places $100 Million Order for JLTVs34

The Army reportedly ordered 258 JLTVs and 1,727 associated components in December 2017 for a total of $100.1 million, with the estimated contract completion date May 31, 2019. According to Oshkosh Defense, it had delivered more than 1,000 vehicles since October 2016, and soldiers and Marines were expected to start receiving JLTVs for operational use in FY2019. Also in FY2019, a full-rate production decision is expected, with an Army and Marine Initial Operating Capability (IOC) expected in early FY2020.

Recent JLTV Program-Related Developments

Army Selects JLTV to Serve as Its Interim Light Reconnaissance Vehicle (LRV)35

The Army reportedly decided to use the JLTV as the platform for its upcoming Light Reconnaissance Vehicle (LRV) program, instead of procuring a new system. Army officials note the JLTV is an interim solution, largely based on costs associated with developing a new system, and, in the future, the Army could opt to pursue an original design for its LRV. It is not known whether additional JLTVs will need to be acquired under the Army's JLTV contract to meet LRV requirements. Reportedly, some Army officials want JLTVs that will serve as an LRV to have two more seats to accommodate scouts as well as a weapon larger than a .50 caliber machine gun, such as a 30 mm cannon. These modifications are viewed as necessary to increase the effectiveness of scout platoons as well as provide sufficient firepower to destroy enemy reconnaissance formations.

In the near term, the Air Force plans to replace HMMWVs with JLTVs in its security forces, explosive ordnance disposal, pararescue, tactical air control, and special tactics units. Reportedly, the Air Force eventually would like to replace its entire 3,270 HMMWV fleet with JLTVs, but Air Force budget documents detail JLTV procurement only from FY2019 through FY2022.

Marines Increase JLTV Requirement to 9,091 Vehicles38

The Marines reportedly plan to increase their JLTV requirement from 5,500 vehicles to 9,091 vehicles—about a 65% increase over the Marines' original approved acquisition objective. Marine leadership reportedly wanted to acquire these additional vehicles as quickly as possible, budget permitting. In June 2017, Marine Corps officials reportedly noted it would take "a couple of years" to formally adjust their approved acquisition objective (AAO), meaning that eventually, JLTVs would account for approximately half of the Marines' light tactical vehicle fleet.

British Foreign Military Sales (FMS) Purchase of JLTV39

The British Army will reportedly acquire 2,747 JLTVs, valued at more than $1 billion, through the Foreign Military Sales (FMS) process. The sale also includes an armor kit, spare tires, and fording gear, as well as training for vehicle operators and maintainers.

JLTV Procurement Extended One Year and Increased Total Program Cost41

DOD reports both the Army and Marines have extended their procurement profiles due to program strategy changes, primarily due to updating the mix of vehicle variants and kits. The Army now plans to conclude its procurement in FY2036 and the Marines in FY2023. Total program costs have also increased to $28.03 billion (a 10.9% increase), primarily due to the increase in procurement profiles, increase in Marine Corps quantities to 9,091 vehicles, updates in vehicle configuration and kit mix for the Army, updates in vehicles and kits based on the vehicle configuration mix for the Marines, and an increase in other support and initial spares for the Army and Marines.

DOD Inspector General (IG) Report and JLTV Production42

A redacted May 2, 2018, DOD IG report notes that, while the Army and Marine Corps developed adequate test plans, the services have not demonstrated effective test results to prepare the JLTV program for full rate production. The IG's review of test results in August and September of 2017 determined the JLTV failed to meet all maintenance-related performance requirements. The IG suggested certain capabilities be developed to address the shortfall, but specifics were redacted in the public version of the report. The JLTV Program Executive Office (PEO) noted in response that the program would equip all JLTVs with the unspecified capability cited in the IG's report.

On January 28, 2019, the first JLTVs were delivered to the 1 st Armored Brigade Combat Team (ABCT), 3 rd Infantry Division at Ft. Stewart, GA. Plans call for the 1 st ABCT to be equipped with about 500 JLTVs by the end of March 2019. It is not known if the 500 JLTVs have been fielded as of the date of this report. The Marines started fielding JLTVs at Camp Pendleton, CA, in February 2019, with initial operational capability planned for late summer 2019.

Director, Operational Test and Evaluation (DOT&E)44 FY2018 Annual Report

Among other things, DOT&E's FY2018 Annual Report contends the following:

The JLTV General Purpose (GP), Heavy Guns Carrier (HGC), and Utility (UTL) variants are operationally effective for employment in combat and tactical missions. The JLTV Close Combat Weapons Carrier (CCWC) is not operationally effective for use in combat and tactical missions. The CCWC provides less capability to engage threats with the Tube-launched, Optically tracked, Wire-guided (TOW) missiles over the fielded High Mobility Multipurpose Wheeled Vehicle (HMMWV). The missile reload process is slow and difficult for crews. All JLTVs are not operationally suitable because of deficiencies in reliability, maintainability, training, manuals, crew situational awareness, and safety.

Reportedly, the Army has decided to delay JLTV full-rate production, previously scheduled for December 2018, until the early summer of 2019, in order to assess options for vehicle design changes suggested by soldiers and marines during testing, potentially resulting in a program schedule breach. Reportedly, the full-rate production decision can be delayed until June 2019, but beyond that, it could trigger a Nunn-McCurdy breach, requiring, among other things, a report to Congress and a new program schedule.

Marine Corps Addresses DOT&E Concerns and JLTV Fielding Plans48

Marine Corps program officials reportedly have worked through a number of the problems addressed in DOT&E's FY2018 Annual Report. They suggest that many of the problems identified in the report can be addressed through improved tactics, techniques, and procedures and that some of the issues identified, such as insufficient training manuals, were a result of program decisions resulting from budget restrictions placed on the service. Marine officials also noted that legacy HMMWVs had similar challenges identified during testing in 1986, but these issues were resolved after fielding. In terms of reliability and maintainability, Marine officials noted HMMWVs go between 500 to 600 miles between operational mission failures, compared to the JLTV's requirement of 2,400 miles before operational mission failure, which the JLTV has surpassed during its developmental testing. Compared to HMMWVs, the JLTV is said to be less burdensome in terms of maintenance, although JLTV maintenance may take a little longer due to a need to remove armored panels and a more complex engine.

The Marines reportedly plan to field its first 55 JLTVs to support units at training locations, including the School of Infantry West, School of Infantry East, and the Motor Transport Maintenance Instructional Company, by the end of May 2019. Beginning in July 2019, operational units are planned to receive their first vehicles (3 rd Battalion, 8 th Marines at Camp Lejeune, NC), which will also signify the Marines Initial Operational capability (IOC). By the end of FY2019, all three Marine Expeditionary Forces (MEFs)—1 st MEF in Camp Pendleton, CA; 2 nd MEF in Camp Lejeune, NC; and 3 rd MEF in Okinawa, Japan—will have received some combination of all variants.

On March 13, 2019, Army leadership reportedly announced the Army was considering lowering its overall requirement for JLTVs. In order to free up funding for modernization, the Army decided to cut funding over the next five years for 93 programs—including the JLTV. Army officials noted the service already has 55,000 HMMWVs and 800 Infantry Squad Vehicles (ISVs), contending the Army "has more capability than we need." Army officials reportedly were looking to lower the overall requirement for JLTVs and would determine "a new top line requirement soon." On March 14, 2019, it was reported the Army planned to buy 1,900 fewer JLTVs than originally planned, reducing program funding by nearly $800 million over the Future Years Defense Plan (FYDP).

Department of Defense (DOD) FY2020 Budget Request53

The FY2020 presidential budget request includes RDT&E and procurement funding requests, as well as FY2020-requested quantities in the base budget and Overseas Contingency Operations (OCO) budget request.

DOD Inspector General's Report and DOT&E's FY2018 Annual Report Findings and Full-Rate JLTV Production

A redacted May 2, 2018, DOD Inspector General's (IG's) report notes the Army and Marine Corps had not demonstrated effective test results to prepare the JLTV program for full-rate production. The IG's review of test results in August and September of 2017 determined the JLTV failed to meet all maintenance-related performance requirements. The IG suggested certain capabilities be developed to address the shortfall, but specifics were redacted in the public version of the report. DOT&E's FY2018 Annual Report noted the following:

All JLTVs are not operationally suitable because of deficiencies in reliability, maintainability, training, manuals, crew situational awareness, and safety. The JLTV Close Combat Weapons Carrier (CCWC) is not operationally effective for use in combat and tactical missions. The CCWC provides less capability to engage threats with the Tube-launched, Optically tracked, Wire-guided (TOW) missiles over the fielded High Mobility Multipurpose Wheeled Vehicle (HMMWV). The missile reload process is slow and difficult for crews.

Military officials involved with the JLTV program appear to be minimizing these findings, reportedly suggesting some of these unspecified problems are "minor improvements identified by soldiers and Marines during testing." Another report alleges the Army "did not respond to questions about the production decision nor the recent DOT&E report, which detailed several JLTV problems." The Army's decision to delay full-rate JLTV production affects not just the Army, but the other services as well, and can be considered a significant programmatic decision. To reconcile possible concerns, a detailed look at the DOD IG's and DOT&E's findings and the actions that will be required to rectify identified deficiencies could be in order. Such an examination could help policymakers determine if these deficiencies are minor in nature, or if more extensive and potentially time-consuming and expensive corrective actions will be required.

What Are Potential Consequences of a Delayed Full-Rate JLTV Production Decision?

While it is not yet known how any delay in full-rate JLTV production will affect the program, it might be considered prudent for policymakers to examine the potential consequences of a delayed full-rate production decision. While a minor delay not invoking a Nunn-McCurdy breach may be inconsequential or have a minimal impact, a longer delay, potentially triggering a Nun-McCurdy breach, could have significant consequences in terms of

program schedule; program cost; service allocation of JLTVs; overall fielding plan; training and readiness of units receiving JLTVs; and potential Foreign Military Sales (FMS).

Such an examination could prove useful to policymakers in the event that a full-rate production decision is significantly delayed, particularly in terms of both program oversight and FY2020 defense authorizations and appropriations discussions.

Implications of the New Top-Line JLTV Requirement

The Army's March 14, 2019, announcement that it was planning to reduce its overall requirement for JLTVs by 1,900 vehicles to help free up funding for modernization raises potential issues for Congress. With the Army reportedly suggesting it has more light tactical vehicle capability than it needs with existing HMMWVs and ISVs, questions could arise as to the accuracy of the Army's original JLTV requirements process. Other questions could arise as well: With a revised overall JLTV requirement, what is the Army's new fielding plan to units? With fewer JLTVs to be fielded, what is the overall operational impact to the force? With an overall JLTV reduction, will the Army's Reserve Components receive fewer JLTVs than originally planned? Finally, will this new revised JLTV requirement be final, or is it possible the Army might again reduce overall JLTV requirements to free up funding for other higher-priority programs, or if future budget reductions are imposed on the Army?