Here's a list of common questions and answers about our licensing, business relationships, and our industry.
We list the most common questions we receive, but if you've got others, contact FOAM for straight answers.
The Montana Board of Outfitters (MBO), a unit of the state Dept. of Labor & Industry, sets experience, qualification, and testing requirements for licensing outfitters to provide fishing and/or hunting services (both big game and upland bird/waterfowl). Guides are sponsored by individual outfitters, then qualified by the MBO for a license.
Yes. We have members who served on the Montana Board of Outfitters and know about the the license application process, including what to fill in for a guide license and tips for testing topics, operations plans, and Net Client Hunting Use regulations for an outfitter's license. Questions? Contact FOAM and our staff can help get you started. We are also working on a step-by-step licensing workbook for guide and outfitter applicants. Check this site for future updates.
To be licensed as a guide, you must be sponsored by a licensed Montana outfitter as noted above. A licensed guide may work for any number of outfitters, either as an employee or as an independent contractor. When you work for another outfitter, he or she must sign your guide license, indicating the day(s) you are working for them, before you can offer services under their license. You may only offer services the outfitter is licensed to provide, and you may only work in the areas the outfitter has registered in their operations plan.
An Outfitter's Assistant (OA) is an unlicensed guide category of guides who are meant to replace missing or injured licensed guides on a temporary basis. This category was created by law in 2013 to replace the original "emergency guide" created by Board of Outfitter rule many years ago. However, this board rule was determined by the Dept. of Labor & Industry to be illegal and ordered repealed.
An OA cannot serve as a guide for more than a total 15 days in a calendar year, unless the OA is "actively obtaining" a guide's license and the application is considered routine.
An outfitter may employ or contract with more than one OA during a calendar year and may employ or contract with the same OA for more than one occasion in a calendar year so long as the OA is not employed or contracted for more than 15 days or, as above, is "actively obtaining" a guide's license and the application is considered routine.
An outfitter using an OA is responsible for ensuring that the OA (1) "safeguards the public health, safety, and welfare while providing services", and (2) "is qalified and competent to perform the tasks of a guide." An outfitter is also "responsible for any acts or omissions by the OA in the ordinary course ans scope of duties assigned by the outfitter." And, by board rule, "Before an outfitter assistant serves a client, the outfitter shall disclose to each client that the outfitter assistant is not a licensed guide or outfitter and shall also disclose whether the outfitter assistant has received first aid certification."
Montana law defines an independent contractor as:
"an individual who renders service in the course of an occupation and: (a) has been and will continue to be free from control or direction over the performance of the services, both under a contract and in fact, and (b) is engaged in an independently established trade, occupation, profession, or business."
Use this Independent contractor exemption certificate application or contact the Independent Contractor Central Unit, (406) 444-9029, for an application. The application is in three parts:
Montana Dept of Labor and Industry
Employment Relations Division
Independent Contractor Central Unit
P.O. Box 8011
Helena MT 59604-8011
Wonder if your application is correct? ICCU has a list of common mistakes for reference.
NOTE: It typically takes the IC Unit less than a week to issue an ICEC; in most cases, they mail out the ICEC within 2 to 3 days of receiving an application.
Got questions about the process? Check the ICCU FAQ page or contact Carissa Jones at 406-444-9029.
There are three steps, each with it's own parts; in short, you must get a guide license, then obtain liability insurance, then apply for Independent Contractor status. Each step MUST be completed before you go on to the next, so plan ahead and make sure you allow up to a month for all steps to be completed.
Work Comp laws at 39-71-417(1) (a) (i), MCA state:
Except as provided in subsection (1)(a)(ii), a person who regularly and customarily performs services at a location other than the person's own fixed business location shall apply to the department for an independent contractor exemption certificate unless the person has elected to be bound personally and individually by the provisions of compensation plan No. 1, 2, or 3.Since most guides and outfitters work away from their 'place of business', they are covered by this section of law. However, the law goes on to say:
(ii) An officer or manager who is exempt under 39-71-401(2)(r)(iii) or (2)(r)(iv) may apply, but is not required to apply, to the department for an independent contractor exemption certificate.As for 39-71-401(2)(r)(iii) and (2)(r)(iv):
(r) an officer of a quasi-public or a private corporation or, except as provided in subsection (3), a manager of a manager-managed limited liability company who qualifies under one or more of the following provisions:All of this is to say, IF you are a corporate officer or a manager of a manager-managed limited liability corporation (or a quasi-public or private corporation) AND you own 20% or more of the shares of stock in the corporation, you are exempt from the Workers' Compensation statute, unless you choose to be personally covered by a workers' compensation insurance policy.
- (i) the officer or manager is not engaged in the ordinary duties of a worker for the corporation or the limited liability company and does not receive any pay from the corporation or the limited liability company for performance of the duties;
- (ii) the officer or manager is engaged primarily in household employment for the corporation or the limited liability company;
- (iii) the officer or manager either:
- (A) owns 20% or more of the number of shares of stock in the corporation or owns 20% or more of the limited liability company; or
- (B) owns less than 20% of the number of shares of stock in the corporation or limited liability company if the officer's or manager's shares when aggregated with the shares owned by a person or persons listed in subsection (2)(r)(iv) total 20% or more of the number of shares in the corporation or limited liability company; or
- (iv) the officer or manager is the spouse, child, adopted child, stepchild, mother, father, son-in-law, daughter-in-law, nephew, niece, brother, or sister of a corporate officer who meets the requirements of subsection (2)(r)(iii)(A) or (2)(r)(iii)(B)
Of course, you can ask to see their license. They are required to carry them in the field.
If they are providing services in a boat, the craft must display a red-and-white sticker with their license number on it near the bow, oarlocks, or stern.
If you know their license number, check the MBO License Search to see if they are currently licensed.
Tip: Look for the link "Search for a licensee" under the Licensee Lookup heading, then read the INSTRUCTIONS to make your search a snap.
It is ILLEGAL for an unlicensed outfitter or guide to provide services for compensation, and it is ILLEGAL to hire an unlicensed outfitter or guide.
Think about your situation before hiring someone else to represent your business. It is YOUR license that's on the line in any business representation or advertising, so be careful!
If you decide to work with a booking agent, make sure you give them express permission to work for you as covered in the MBO rules at 24.171.405. Write out and have all parties sign an agreement that explains just how the agent can work to get you trips and include a description and/or terms regarding how they should:
Make it clear that you, as outfitter, are responsible for setting all terms and conditions with clients in accordance with MBO rules noted above.
For a business like a flyshop to offer guided fishing trips, they need an "outfitter of record" for the business. Since the business may be acting as a booking agent, the outfitter should set all terms and conditions of business as described above in the answer about using booking agents. Again, remember, it's your license and the right to offer outfitted and guided trips the business wants, so be cautious, maintain control over the booking details, and get everything in writing to protect yourself and your license.
Board of Outfitter conduct rules require that "when advertising services, an outfitter shall clearly designate the outfitter's registered business name or personal name and the outfitter's license number."
Recent board advertising rules specify how an outfitter can work with another person when advertising or referring clients to the outfitter, noting that "the outfitter is accountable to the board for the appearance and propriety of all such advertising and for all interactions between the other person and the clients and potential clients."
These same advertising rules make it clear that guides may advertise to outfitters, but when "using media or methods that the general public may also view shall include a clear and conspicuous disclaimer that advises the general public that the advertisement is for outfitters only, not the general public."
An acknowledgment of risk form is recommended, but not required, by FOAM's liability insurance underwriter for every client and each trip. It informs your client(s) that there are risks involved in flyfishing, wading, and floating that are beyond your control, and asks that they sign and date the form as proof they acknowledge these risks. You may download our recommended AR forms: one for a single client per trip and one for up to four clients on a trip.
NOTE: An acknowledgement of risk form does not exempt a recreational provider from legal action based on a service provider's ordinary negligence. A law enacted in 2015 does permit the use of a written waiver or release to protect a provider from conduct that constitutes ordinary negligence or for inherent risks. However, any such waiver or release must:
Finally, a waiver or release may be challenged on any legal grounds.
FOAM urges you to consider the difference between an acknowledgement of risk form - a document that informs clients of the risks inherent in fishing services - and a waiver or release - a document that, depending on the outcome of legal challenges, may exempt the provider from legal action for damages or injuries suffered due to a provider's ordinary negligence.
The MT Dept. of Fish and Wildlife requires all licensed fishing outfitters and guides using their fishing access sites (FAS) to have a statewide FAS permit. It costs $100 annually, and you can apply online. Look for the 'Commercial Use' category, then select the Commercial FAS Permit, Licensed Outfitters and Guides. Most FOAM members buy this permit when they apply for their annual fishing license.