Now that mediation has failed, the government's decision to take Yellowstone's grizzly bears off the list of threatened species will be decided in federal court.

Two cases are pending in Boise and one in Missoula challenging the U.S. Fish and Wildlife Service decision of 2006 to delist Yellowstone's grizzlies. Judge Malloy in Missoula and Magistrate Judge Lynch in Boise jointly recommended that the parties in all three cases enter mediation to see if they could resolve their differences without litigation.

Mediation has gained favor as a technique to settle lawsuits. Disinterested lawyers or retired judges serve as mediators in a form of shuttle diplomacy as they probe each side, looking for ways to close the gaps in their positions.

Confidential mediation

Because this process is confidential, we will never know how close the government and its critics came to an agreement. At some point, obviously, one or both sides dug in their heels. So now the two federal judges will hear the cases, enter judgments, and the losing sides will almost certainly appeal. It is no sure bet that the two judges necessarily will decide their cases the same way, but the Ninth Circuit will probably consider and decide them all in a consolidated appeal.

The cases raise thorny issues. The one we've heard the most about is whether the government should have delisted Yellowstone's grizzlies in the face of what many biologists see as major habitat change. Pine beetle attacks on the high elevation whitebark pine, whose nuts are an important food source for grizzlies, are the biggest worry. When cone crops are good, grizzlies stay in the high country and out of trouble. In bad cone years, bears are down scavenging for food around humans. Conflicts arise and bear deaths from human causes soar. With the whitebark pine under threat, the nongovernmental scientists warn, this spells more trouble for grizzlies. The Fish and Wildlife Service counters that grizzlies will eat almost anything, they have adapted to many changes before, habitats stay the same only in fairy tales, and if we waited for them to stop changing, we would never delist anything.

Besides, says the government, these are the kinds of biological judgments that Congress entrusted to the Fish and Wildlife Service. It has rendered its best biological opinion and federal judges, who are not bear biologists, ought not try to second-guess the government and substitute their own judgment over the best way to manage bears.

Another key issue that is likely to arise is the Fish and Wildlife Service's decision to treat the bears of Yellowstone as a distinct population and delist them when grizzlies everywhere else in the lower 48 are still threatened. Some environmentalists argue that this distorts the meaning of the Endangered Species Act, and they cite court decisions from other parts of the country to support them.

The issue, according to them, is whether the government can draw a circle around a healthy population and declare a partial victory by delisting it while other populations are still imperiled.

Parallels with wolf policy

Immediately, we see parallels between what the Fish and Wildlife Service has done with grizzlies in Yellowstone and what it has done with gray wolves in Montana and Idaho. Both raise questions about how to treat so-called distinct populations - questions that go to the central meaning of the Endangered Species Act.

It may well be that this specter of broader issues looming on the horizon led the parties to shy away from a settlement and stake everything on what they believe the law is or what they want it to become.

David Knibb is a lawyer and author of "Grizzly Wars: The Public Fight Over the Great Bear," published by Eastern Washington University Press.