OSM subsequently reopened the public comment period on the state's request.

Though OSM has never approved the fish and wildlife habitat use, state officials have granted at least 23 permits for mines proposing it as a post-mining land use.

In his comments filed with OSM, Lovett argued that Congress didn't intend to allow rugged Appalachian hills and hollows to be flattened if mine operators didn't plan future economic development projects that needed flat land.

"It is clear that a post-mining land use must be a socially beneficial, well-planned development that uses land in a higher and better way than it was used before mining took place," Lovett wrote.

"Congress did not intend to allow a passive, undeveloped post-mining land use such as fish and wildlife habitat and recreation lands," he wrote. "That use is not socially beneficial.

"It does not require any development. It does not require any public facilities. It is not a higher and better use than that which previously existed.

"The reason the mountaintop removal mining operators and the state are pushing so hard for the approval of 'fish and wildlife habitat and recreation lands' use, even in the current climate, is because it is the easiest and least expensive kind of reclamation to carry out."

Lawyers for the West Virginia Highlands Conservancy and 10 coalfield residents filed papers Monday asking that the U.S. Office of Surface Mining reject the practice.

"It is astonishing that the state and strip mining operators persist in their attempts to make mountaintop removal even easier and cheaper to accomplish," wrote Charleston lawyer Joe Lovett.

"This attempt to weaken the strip mining laws yet again, in the wake of the mitigation bill fiasco, demonstrates the state's continuing disregard for the law and for the people who depend on the law to protect them from massive strip mining operations," Lovett wrote.

Under federal law, mountaintop removal operations can flatten out land only if they plan one of five specific types of development as a post-mining land use: agriculture, commercial, industrial, residential or public facilities.

The state Division of Environmental Protection wants OSM to add "fish and wildlife habitat and recreation lands" to the list of approved post-mining land uses for mountaintop removal mines in West Virginia.

OSM has not officially acted on the request. But Roger Calhoun, director of the Charleston OSM field office, indicated in October 1997 that the DEP proposal doesn't comply with the 1977 federal strip mining law.

DEP mining chief John Ailes went over Calhoun's head, to OSM regional Director Al Klein, to argue that the state's proposal should be approved. Coal industry lobbyists turned up the heat as well, with a letter to OSM national Director Kathy Karpan complaining about the way Calhoun's staff has handled the issue.

OSM subsequently reopened the public comment period on the state's request.

Though OSM has never approved the fish and wildlife habitat use, state officials have granted at least 23 permits for mines proposing it as a post-mining land use.

In his comments filed with OSM, Lovett argued that Congress didn't intend to allow rugged Appalachian hills and hollows to be flattened if mine operators didn't plan future economic development projects that needed flat land.

"It is clear that a post-mining land use must be a socially beneficial, well-planned development that uses land in a higher and better way than it was used before mining took place," Lovett wrote.

"Congress did not intend to allow a passive, undeveloped post-mining land use such as fish and wildlife habitat and recreation lands," he wrote. "That use is not socially beneficial.

"It does not require any development. It does not require any public facilities. It is not a higher and better use than that which previously existed.

"The reason the mountaintop removal mining operators and the state are pushing so hard for the approval of 'fish and wildlife habitat and recreation lands' use, even in the current climate, is because it is the easiest and least expensive kind of reclamation to carry out."