"Plaintiffs have simply looked at one tree, the definition, and tried to extrapolate a whole forest," they said. "This court needs to consider the entire forest of law and regulations as it exists."

There is no way that valley fills can meet the 100-foot stream buffer zone requirements of the Clean Water Act, so they must be exempt from it.

"Like the most aggressive revisionist historians, plaintiffs have ignored the received and uninterrupted interpretation of nearly 20 years' vintage and asked this court to reinterpret regulations that have long been understood and applied," Bailey and Glasser said.

"Specifically, plaintiffs have reached deep into the bowels of the complex regulatory scheme which governs all mining in West Virginia to ask this court to rule that 'valley fills in perennial and intermittent streams violate the buffer zone rule as a matter of law.'

"That is a revolutionary request," they said. "If granted, it would bring mining in West Virginia to a grinding halt, because almost all mining operations - surface and underground - use valley fills, and many of those fills exist or will exist in headwater areas with intermittent or perennial flow."

Bailey and Glasser also raised one issue of disputed fact, which could scuttle efforts to resolve the case early on summary judgment.

They said that DEP does not agree to any "assumed harm to water quality, assumed water degradation, or assumed harm to stream flow" because of valley fills.

Haden has not indicated when he will rule on the summary judgment motions.

DEP lawyers told U.S. District Judge Charles H. Haden II that they think he should deny a motion for summary judgment filed by lawyers for the West Virginia Highlands Conservancy.

In summary judgment motions, lawyers ask judges to rule only on their interpretation of the law, when there are no material facts in dispute.

The Conservancy wants Haden to issue a summary judgment ruling in its favor on two key issues in the case: whether valley fills violate stream buffer zone rules and whether the approximate original contour requirements apply to valley fills.

Ben Bailey and Brian Glasser, private lawyers hired to represent DEP in the case, filed a 22-page brief Tuesday that said the environmental group's position "would bring mining in West Virginia to a grinding halt."

On the two issues, Bailey and Glasser said:

There is no way that valley fills can be reclaimed to their approximate original contour, or AOC.

"On the most basic level, one who fills in a hole necessarily changes its original contours," they said. "The same is true for valleys."

The plaintiffs' argument, they said, relies solely on definitions of mining terms.

"It ignores half a dozen state and federal statutes and regulations which tell [DEP] Director [Michael] Miano how to apply the definitions, and tell him that AOC does not apply to valley fills," they said.

"Plaintiffs have simply looked at one tree, the definition, and tried to extrapolate a whole forest," they said. "This court needs to consider the entire forest of law and regulations as it exists."

There is no way that valley fills can meet the 100-foot stream buffer zone requirements of the Clean Water Act, so they must be exempt from it.

"Like the most aggressive revisionist historians, plaintiffs have ignored the received and uninterrupted interpretation of nearly 20 years' vintage and asked this court to reinterpret regulations that have long been understood and applied," Bailey and Glasser said.

"Specifically, plaintiffs have reached deep into the bowels of the complex regulatory scheme which governs all mining in West Virginia to ask this court to rule that 'valley fills in perennial and intermittent streams violate the buffer zone rule as a matter of law.'

"That is a revolutionary request," they said. "If granted, it would bring mining in West Virginia to a grinding halt, because almost all mining operations - surface and underground - use valley fills, and many of those fills exist or will exist in headwater areas with intermittent or perennial flow."

Bailey and Glasser also raised one issue of disputed fact, which could scuttle efforts to resolve the case early on summary judgment.

They said that DEP does not agree to any "assumed harm to water quality, assumed water degradation, or assumed harm to stream flow" because of valley fills.

Haden has not indicated when he will rule on the summary judgment motions.