CHARLESTON, W.Va. (AP) — West Virginia’s Supreme Court on Monday declined to answer a federal court’s question in an appeal in a landmark lawsuit over whether the distribution of opioids can cause a public nuisance.

The 3-2 opinion returns the case to the 4th U.S. Circuit Court of Appeals in Richmond, Virginia.

It’s been nearly three years since a federal judge in Charleston ruled in favor of three major U.S. drug distributors who were accused by Cabell County and the city of Huntington of causing a public health crisis by distributing 81 million pills over eight years in the county. AmerisourceBergen Drug Co., Cardinal Health Inc. and McKesson Corp. also were accused of ignoring the signs that Cabell County was being ravaged by addiction.

U.S. District Judge Faber in Charleston said West Virginia’s Supreme Court had only applied public nuisance law in the context of conduct that interferes with public property or resources. He said to extend the law to cover the marketing and sale of opioids “is inconsistent with the history and traditional notions of nuisance.”

Last year the appeals court in Richmond, Virginia, sent a certified question to the state Supreme Court, which states: “Under West Virginia’s common law, can conditions caused by the distribution of a controlled substance constitute a public nuisance and, if so, what are the elements of such a public nuisance claim?”

Had the state justices ruled that opioids distribution can cause a public nuisance, the case would have returned to the 4th Circuit anyway. Had the West Virginia court found that opioids can’t cause a public nuisance, the appeal would have ended, the 4th Circuit has said.

Instead, a majority of the West Virginia justices refused to get involved.

Justice Haley Bunn delivered the opinion of the West Virginia Supreme Court. Justice Beth Walker, who is retiring next month, issued a separate opinion. Chief Justice Bill Wooton was joined in a dissenting opinion by Circuit Judge Tera Salango. Salango and Circuit Judge Andrew Dimlich heard the case on temporary assignment after two other justices disqualified themselves.

Paul Farrell Jr., an attorney representing the plaintiffs, said Monday he was disappointed that the justices declined to answer the legal question.

“The fight isn’t over,” Farrell said. “There’s still a long way to go. We continue on our path to seek justice.”

Farrell said the appeals court still must address a combination of factual and legal issues.

A Cardinal Health spokesperson declined to comment on Monday’s ruling. Emails seeking comment from AmerisourceBergen and McKesson weren’t immediately returned.