JACKSON - Under the gray Jackson Hole skies that intermittently promise snow, Philip Frankovic has work to do.

He's pulling out 38 four-stroke snowmobiles from storage and getting them ready for the winter season.

Of course, he doesn't know how much they'll be used.

Frankovic, as owner of Best Adventures Snowmobile Tours of Yellowstone, has seen it all. Last year, after buying the 38 machines to the tune of $6,600 each, Frankovic wrestled with rule changes hitting twice during the season.

"We're just proceeding day to day," he said. "I think everything's up in the air. We're setting up the snowmobiles and taking reservations. After last year, anything can happen. We're not jumping up and down here yet."

Small-business owner Frankovic is the classic example of the monkey in the middle. As snowmobile groups and conservationists continue to battle over the future winter access in Yellowstone National Park, both say they are looking out for Frankovic's future.

The question for Frankovic, and many others embroiled in the snowmobile issue, is not who is right, but rather, "What will it take to end this thing?"

With neither side backing down and each saying its plan is the right one for the future of the park, where can we go from here?

To the Supreme Court?

Richard Thomas, who retired from the Wyoming Supreme Court in 2001 after having served since 1974, said legally, it will take a final decision in a federal court to end the battle.

Thomas said a decision in a Wyoming federal court - U.S. District Judge Clarence Brimmer of Cheyenne has ruled in favor of snowmobile use - will likely be appealed in the 10th U.S. Circuit Court of Appeals.

Thomas said that court is "still relatively conservative."

From there, conservation groups could appeal the case to the U.S. Supreme Court.

But Thomas said the Supreme Court generally accepts about 2 percent of the cases it is asked to review annually.

"I would haunch that the case would not get before the Supreme Court," he said.

Abigail Dillen, an attorney with Bozeman, Mont.-based Earthjustice who represents groups such as the Wilderness Society, said she hoped the case would not go to the Supreme Court, either.

"I don't think this issue is going to be settled unless snowmobiles become so much quieter and cleaner they aren't a problem," she said.

Dillen also said the Supreme Court would likely only hear the case if it presented a "novel jurisdictional issue."

Courts in Washington, D.C., have sided with conservation groups, while Wyoming courts sided with snowmobilers. Both have jurisdiction over the national parks.

"I don't think this kind of judicial Ping Pong between the courts is good for anybody or is good for the park," Dillen said.

But the rulings from each court surrounded different issues, Dillen said. Brimmer ruled that the Clinton administration plan to ban snowmobiles did not adequately allow for public comments. Judge Emmet Sullivan in Washington said the rule allowing sleds did not comply with the Organic Act governing the parks and the National Environmental Policy Act.

"This wasn't a situation where you absolutely had to have some higher authority come down and say one was right and one wrong," Dillen said.

Still, the future of the battle is unclear.

Gov. Dave Freudenthal said the cure to the conflict is this: "For the federal government to finally do the right thing."

Freudenthal said the state wants to see permits divvied up by operator, and for private drivers to enter the park without commercial guides.

U.S. Sen. Craig Thomas, R-Wyo., said the battle will end with continued pressure from the Bush administration to allow snowmobiles.

"Have (the legal issues) going to the right court to make the decision," he said, is the right way to end the back and forth.

Dillen, however, said as long as people in the Park Service continue to come back with studies saying the best way to protect Yellowstone from air and noise pollution is to eliminate sleds, that is the best choice.

Meantime, she said there should be "backstops" where if levels are exceeded, that triggers a change in management.

Who has authority?

Judge Thomas said the issue comes down to who has the authority to regulate activity in national parks. Congress could exercise authority, but ultimately, the Park Service is part of the executive branch, he said.

"My impression in terms of the current political environment is the environmentalists are not in a particularly strong position to insist upon any particular form of regulation by the National Park Service," he said from his home in Cheyenne last week. "It comes down to, 'Where do we go in terms of the utilization by citizens of their national park?'"

Thomas said he believes ultimately the situation will be studied long enough to discover wildlife adapt to the presence of snowmobiles.

"My belief is if you look out 20 years, you're going to find a controlled number of snowmobile travelers within the national parks," he said.

Operator Frankovic hopes he's right.

"What's it going to take to end this thing? I don't know," he said. "I think it's at a stalemate. Time will tell. Our feeling is the Park Service does a good job. They have a plan to monitor this process for another three years, and I think they should be able to follow through."

Sled case history

The Yellowstone winter use rules have been bouncing back and forth between lawsuits for nearly four years. Here's a recap of the history:

* In 2001, a Clinton-era ban on snowmobile use was stopped by the Bush administration, and a new study was initiated.

* In 2003, a new plan was developed calling for a cap on use and cleaner, quieter sleds.

* On Dec. 16, 2003, that rule was stopped by a Washington, D.C., judge - just before the parks were to open for the winter season. That court case lowered the number of machines allowed in the park and called for an entire ban starting this winter - reinstating the Clinton-era ban.

* In February, U.S. District Judge Clarence Brimmer said the December rule "unfairly punishes operators" and told the Park Service to establish new rules. The agency did, bumping the numbers back up again to 780 sleds per day for the rest of the season. Those numbers were not reached as confusion marred a booming snowmobile season in Yellowstone.

* Now, another long-term study on the impact of cleaner, quieter snowmobiles on the parks is under way and is expected to take three years. For those three years, the National Park Service submitted an interim plan last week that would allow 720 snowmobiles a day to enter Yellowstone. That rule was determined to have "no significant impact" and is not open for public comment.

* It is, however, open to lawsuits, and at least three were filed last week. One is from the Fund for Animals and Bluewater Network, charging study into the effects of groomed trails on animals was not completed. The second is from restaurant and travel groups in Wyoming saying the numbers are too low to allow for viable businesses. A third, filed Friday by the Greater Yellowstone Coalition and others, asks a federal judge in Washington, D.C., to order the Park Service to do the monitoring and "adaptive management" necessary to protect the park and its resources.

The interim rule

The National Park Service's new interim plan allows 720 snowmobiles a day in Yellowstone and 140 in Grand Teton and on the John D. Rockefeller Parkway. Snowmobilers in Yellowstone would be required to have guides, but not in Grand Teton.

* Historical comparison: The proposed numbers are less than what the Park Service had proposed in 2003 but more than double the actual numbers from last winter. Average daily sled use last year was 273, in a year riddled with confusion because numbers kept changing due to lawsuits. Park planners have said using last year's actual numbers as a base for long-term planning is not valid because the winter was such an anomaly. The numbers in the preferred plan come from historic uses in the park, which is 765 snowmobiles per day.

* Snowplanes: None of the alternatives allows for snowplane access on Jackson Lake. The preferred plan allows 40 unguided sleds on Jackson Lake for fishing each day.

* Machine specs: Snowmobiles entering the park will be "best available technology," or four-stroke machines.

* Duration: This proposed temporary rule is expected to be in place for up to three years, as planners complete yet another round of study on snowmobile use in the parks. The next round of study is expected to use "real-time" data, showing effects of cleaner and quieter machines and the use of guides, and those impacts on the park's resources.

* Purpose: The temporary rules are designed to give gateway communities and businesses some stability in planning their seasons, park officials said.

Environmental reporter Whitney Royster can be reached at (307) 734-0260 or at royster@trib.com.