FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT VIRGIL E. DAY; MEL  HOOMANAWANUI; JOSIAH L. HOOHULI; PATRICK L. KAHAWAIOLAA; SAMUEL L. KEALOHA, JR., Plaintiffs-Appellants, v. HAUNANI APOLIONA, individually and in her official capacity as Chairperson and Trustee of the Office of Hawaiian affairs; No. 06-16625 ROWENA AKANA; DANTE CARPENTER; DONALD CATALUNA; D.C. No. LINDA KEAWE’EHU DELA CRUZ;  CV-05-00649-SOM District of COLETTE Y. PI’IPI MACHADO; BOYD P. MOSSMAN; OSWALD K. STENDER; Hawaii, Honolulu JOHN D. WAIHEE, IV, Trustees of ORDER the Office of Hawaiian Affairs of the State of Hawaii, sued in their official capacities for declaratory and prospective injunctive relief; sued in individual capacities for damages; CLAYTON HEE; CHARLES OTA, Former Trustees of the Office of Hawaiian Affairs of the State of Hawaii, sued in their individual capacities for damages, Defendants-Appellees.  16749 16750 DAY v. APOLIONA Filed December 19, 2007 Before: David R. Thompson, Marsha S. Berzon, and Richard C. Tallman, Circuit Judges. ORDER The opinion is amended to remove the words “sua sponte” on page six of the slip opinion (page 9431).  PRINTED FOR ADMINISTRATIVE OFFICE—U.S. COURTS BY THOMSON/WEST—SAN FRANCISCO The summary, which does not constitute a part of the opinion of the court, is copyrighted © 2007 Thomson/West.