Frequently Asked Questions

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 of Labor & Industry to be illegal and ordered repealed.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."

For complete details, check the Montana Code Amended section and Board of Outfitter's complete rules regarding Outfitter's Assistants.

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."

• Characteristics/history of Independent Contractorship
• An Independent Contractor must have workers' compensation insurance coverage on themselves or obtain an exemption from Workers Compensation contribution requirements.
• A Montana Supreme Court decision, Wild v. Fregein Construction and Montana State Compensation Insurance Fund, outlines a very strict interpretation of the Montana definition of Independent Contractor. Consequently, the Montana Dept. of Labor and Industry explains new IC laws simply and clearly.
• Questions? Check the ICEC "15 point criteria list" to qualify as an IC, or the Independent Contractor Central Unit's FAQ page
• Contact Montana's Employment Relations Division or the Independent Contractor Central Unit, (406) 444-9029.
• FOAM has developed a sample Independent Contractor Memorandum of Agreement for use by outfitters or guides who wish to clarify their working relationship in writing. FOAM recommends outfitters and guides or outfitters acting as guides having this or a similar document on file to help meet the IC standards in case a question of your working relationship arises.

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:

1. An 'application' form (a questionnaire that you MUST sign in front of a Notary Public - usually at your bank or credit union) outlining your business structure (most guides are Sole Proprietors), your 'profession or trade' (fishing guide), and other information.
2. NOTE: Line 3 of the 'application' says "I am providing documentation . . . etc." As explained in the previous FAQ, the new IC system requires you to submit proof that you operate an independent business and uses a point system to gauge whether you meet legal requirements. The simplest way to make sure you have the minimum number of points (15) is to send three items along with your application:
   • a copy of your guide or outfitter license (3 points)
   • a copy of your liability insurance (6 points) – see the MEMBERSHIP page for FOAM member liability coverage.
   • a list of your equipment (boat(s), trailer, oars, life vests, etc.) with approximate dollar value (6 points)
3. A waiver form of workers' compensation benefits that must be initialed at each paragraph, then signed in front of a notary.

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.

• Step 1: Get a guide license from the Montana Board of Outfitters.
  1. Find an outfitter willing to 'sponsor' or recommend you as a guide.
  2. Get a guide license application from that outfitter or the board of outfitters.
  3. Fill out the application, cut a check for $150 to the Montana Board of Outfitters, and mail to the Montana Board of Outfitters, 301 South Park Avenue, PO Box 200513, Helena, MT 59620-0513.
  4. NOTE: Allow two weeks for the Board of Outfitters to send your outfitter your guide license.
• Step 2: Obtain liability insurance.
  1. Join FOAM as a guide member. FOAM offers a group liability insurance policy. See the Membership page.
  2. Apply for liability insurance and obtain an certificate of insurance.
  3. Pay with checks for both FOAM membership and insurance; neither FOAM nor the insuror will take credit cards.
  4. NOTE: Allow 10 days for our insuror to mail out a certificate of insurance.
• Step 3: Once you have a guide license and an insurance certificate, apply for an Independent Contractor Exemption Certificate (ICEC). Allow up to two weeks to get your IC certificate! See the "How do I get an Independent Contractor Exemption Certificate" FAQ a couple spots up on this page for more info about an IECE.

Use the ICCU Contractor search page.

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:

• (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)

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.

We have several members who have followed this process successfully, have been audited by the IC Central Unit, and passed their scrutiny. Of course, you should review the law carefully or consult an attorney for the latest details. FOAM offers this information for your use, but we are NOT attorneys.

For more information, check out the Corporate Officers, Managers of Manager-Managed LLC's Exemption (Optional), or contact the Montana Secretary of State's office at (406) 444.2034. Download copies of the Limited Liability Corporation Articles of Organization and go online to submit your Annual report, due annually by March 15.

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.

You should contact a the Board of Outfitters, a local Fish, Wildlife & Parks warden, or TIP-MONT- 800-847-6668.

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:

• schedule trips
• represent your services, including your deposit and refund policy
• collect deposits or fees
• find guides for trips
• take other steps to establish contracts for services
• and any other terms you consider important.

Make it clear that you, as outfitter, are responsible for directly 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."

Go online -

• Board of Outfitter laws
• Outfitter and guide laws
• Board of Outfitter rules

or by calling the MBO at (406) 841-2370.

• The complaint: When a complaint is received by the Compliance Office, they will send a letter of acknowledgement to the person filing the complaint (Complainant), and a letter requesting a response from the licensee against whom the complaint was filed. The licensee may (and should .Ed) submit a written response addressing the complaint to the Compliance Office. The complainant is not entitled to a copy of this response. The Compliance Office will notify the licensee and the complainant regarding the date and time of any meeting during which the complaint/case will be discussed. Complaints remain confidential unless a Notice of Proposed Board Action is issued, which is a public document along with all subsequent legal document filings.
• Meetings:
  • Closed: Only the licensee, complainant, and/or attorneys for either can be in attendance. Minutes of closed meetings are not public documents available to the public.
  • Open: A public meeting anyone can attend. The minutes of open meetings are public documents and are made available online via the Board's website.
• The Screening Panel: This is a commitee made up of members of the Board of Outfitters. The panel's job is to determine the preliminary action(s) to take on a complaint. Actions may include dismissal, investigation, or a finding of Reasonable Cause. The Screening Panel is not a hearing; it is a review and discussion of the complaint and response to determine if disciplinary action is warranted. Typically, Screening Panel meetings are closed to the public.
  Note: If both the licensee and the complainant waive their rights to privacy during a Screening Panel meeting, members of the public, including a FOAM representative, may attend. This FOAM representative is not legal counsel, but will be familar with the Board of Outfitters and the complaint and disciplinary process.
  • Dismissal: If the Screening Panel dismisses a complaint, the dismissal can be with prejudice or without prejudice: with prejudice means the complaint is dismissed and cannot be considered by the Screening Panel in the future; without prejudice means the complaint is dismissed, but may be considered by the Screening Panel in the future if there are ever allegations of a similar nature.
  • Investigation: Only a member of the Screening Panel can request an investigation. Once an investigation is requested, the case is assigned to an investigator who may request an interview with the licensee, the complainant, and/or other individuals. When the investigation is finished, a written report is submitted to the Screening Panel, which will then determine if there is Reasonable Cause to proceed with disciplinary action.
  • Reasonable Cause: A finding by the Screening Panel that evidence exists that a violation of statutes and/or rules has occurred which warrants proceeding with disciplinary action.
    • If Reasonable Cause is found, the Department Counsel issues a Notice of Proposed Board Action (Notice) to the licensee. Once a notice is issued, it is public information. A proposed Stipulation may be included with the notice.
    • A stipulation is a tentative agreement between the licensee and the Department Counsel for settlement of the case. A stipulation is not finalized until it is approved by the Adjudication Panel. The licensee may either sign the stipulation or contest the proposed action of the stipulation by requesting an administrative Hearing, a legal process before a Hearing Examiner. If the licensee wishes to request a hearing, a written request must be received within twenty (20) days from receipt of the Notice of Proposed Board Action. Failure to either sign a stipulation or request a hearing withing the twenty (20) days may result in the issuing of a Final Order of Default against the licensee.
    • Default: the licensee's acceptance of the disciplinary action demonstrated by failing to participate in the process.
• Adjudication Panel: This is a committee made up of members of the Board of Outfitters who are not on the Screening Panel. The Adjudication Panel determines the final outcome of a complaint case. The panel reviews the record to determine appropriate sanctions, including those outlined in a stipulation. Adjudication Panel meetings are open to the public. A Final Order is issued by the Adjudication Panel, completing the complaint process .
• Common questions about the complaint process:
  • Will my complaint remain confidential? Initially, yes. The licensee receives a copy of the complaint in order to respond to the allegations made. The Screening Panel meeting is typically a closed meeting (see Note above under Screening Panel). However, if the board proceeds with disciplinary action, the notice (see above) is a public document as are all subsequent legal filings. All proceedings of a hearing requested by the licensee are open to the public, as is the Adjudication Panel meeting.
  • Will I be allowed to present my case at the Screening Panel meeting? No, you will not have the opportunity to present testimony unless asked specific questions by the Screening Panel members or Board Counsel. You must present all pertinent information in your intial response to the complaint.
  • Can the Department/Board offer me any legal advice? No. Department/Board staff can refer you to Board rules and statutes and answer questions about the complaint process, but the Department/Board represents neither licensees nor complianants. Licensees involved in a complaint are encouraged to seek professional legal assistance if they feel then need legal advice or services.
    Note: A FOAM representative may explain the complaint process in much more detail at your request, and, if you and the complainant waive your rights to privacy, a FOAM representative may attend the Screening Panel with you. This FOAM representative is not legal counsel, but will be familar with the Board of Outfitters and the complaint and disciplinary process.
  • I have questions about the complaint process. Who should I contact? All correspondence from the Compliance Office will contain contact information for the Compliance Specialist assigned to your case. You may also access the Complaints section of the Montana state website. And, as noted above, a FOAM representative may help with questions about the complaint process.

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:

• state known inherent risks of the sport or recreational opportunity
• contain the following statement in bold typeface: "By signing this document you may be waiving your legal right to a jury trial to hold the provider legally responsible for any injuries or damages resulting from risks inherent in the sport or recreational opportunity or for any injuries or damages you may suffer due to the provider's ordinary negligence that are the result of the provider's failure to exercise reasonable care"

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.

According to U.S. Coast Guard regulations, to provide commercial services on "navigable waterways" in Montana under the jurisdiction of the USCG, you need an Operator of Uninspected Passenger Vessel (OUPV) License.   Check this list of waters under USCG jurisdiction to see if you need such a license.

Check this Wikipedia article for more details on USCG licensing.

NOTE: You will also need a Transportation Worker Identification Credential (TWIC) to obtain a USCC license.