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 of Labor & Industry to be illegal and ordered repealed.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.
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.
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 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."
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.
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.
Yes, commercial auto coverage is highly recommended to protect you and your client(s) in case you have an accident due to your own negligence and your client(s) are injured.
Here are a few personal-versus-commercial auto insurance questions and answers provided by FOAM's liability insurance agent, the Bissell Agency in Bozeman:
My insurance agent said that as long as I am not charging to transport clients to and from the water, my personal auto policy will cover me when guiding. Is this accurate?
We write auto policies through eight different personal auto insurance carriers. All have stated that if you are a fishing outfitter or guide taking clients in vehicle, whether you are taking payment or not, the insurance company has the right to deny coverage for misrepresentation with a personal auto policy. Based on our information and experience, it would be much better to have a commercial auto policy for this type of exposure.
I've heard that commercial auto insurance is a lot more expensive than personal insurance. Is that true?
First, remember, auto insurance premiums are based on your age, driving records, and type of vehicle insured and that overall premiums change due to insuror's claim records.
In our experience, this is not the case. We've found that commercial auto premiums are comparable to personal auto premiums, and, in some cases, less expensive.
One thing to remember is that personal auto insurors typically write lower liability limits, and we are comparing the same coverage limits, an "apples to apples" comparison. Check the following quote comparisons:
Quote comparison #1:
6-month premium for personal auto = $400 paid in full (no installment payments)
6-month premium for commercial auto = $303 paid in full - commercial premium is $97 cheaper
Coverage for both quotes is $250,000/$500,000/$100,000 liability limits with $1000 deductible
In this example, the $250,000 is per person, $500,000 is per accident limit, and $100,000 limit for property damage.
Quote comparison #2:
6-month premium for personal auto = $480 paid in full
6-month premium for commercial auto = $531 paid in full - commercial premium is $51 more every six months
Coverage for both quotes is $100,000/$300,000/$50,000 liability limits with $500 deductible
Like quote comparison #1, the limits are $100,000 per person, $300,000 per accident, $50,000 limit for property damage, and $500 deductibles.
Quote comparison #3:
Coverage: $500,000 combined single liability limit with $2000 deductible
Combined single limit of coverage means the most the insurance carrier will pay for the entire accident. In this case, the $500,000 can be used per person or as a lump sum for all persons involved including property damage from the occurrence/loss. This type of limit is different from the split limits described in quote comparison #1 where the limits are split between per person, per accident, and property damage coverage.
6-month premium for personal auto = $527 paid in full
Coverage: $1,000,000 combined single liability limit with $2500 deductible
6-month premium for commercial auto = $588 paid in full - commercial auto with double the liability limit is only $61 more each six months
NOTE: Frequently, personal auto liability limits are at state minimum of $25,000/$50,000. Our agency highly suggests higher liability limits, and we do not write limits lower than $100,000/#300,000 for liability on any of our auto policies. So, higher liability limits typically mean higher premiums.
Will my commercial auto coverage still cover me when I'm not using my vehicle to transport clients?
Yes. Our commercial policies cover both commercial and personal use.
I have multiple vehicle discounts on my personal auto insurance policy. Will I lose these discounts if I get commmercial auto coverage?
Our agency can also offer a package discount if your general liability for your guiding is purchased through us as a FOAM member. We have the ability to add other vehicles to a commercial auto policy and rate them for personal use only.
We also have several carriers for personal insurance such as home, renters, etc.
If I have personal auto coverage and I'm in an accident that injures my clients, what would be covered?
Per our agency's conversation with the MT Insurance Department, the insurance carrier may have the option of denying coverage for misrepresentation. In their opinion, the best option is to purchase commercial auto insurance for this type of exposure.
There was an accident a few years ago when a shuttle driver moving a guide's vehicle was killed in an accident. Does my personal auto insurance cover me for damages and bodily injury if my vehicle is in an accident while being shuttled by a contracted shuttle company?
This is a very grey area. Our agency wouldn't knowingly write a personal auto policy for any of our clients that use their vehicle while guiding and hire shuttle companies to move their vehicle.
The Montana law is that insurance follows the vehicle, regardless of the driver. So, if you and your family were out floating and used a shuttle service, there would be coverage under your personal auto insurance for damages and bodily injury.
But, as noted before, if I was using the vehicle as a fishing outfitter or guide transporting clients, even when the vehicle was being shuttled without any clients present, your personal auto insurance carrier could deny coverage. Commercial auto insurance would cover your vehicle while being shuttled; we have had this happen a few times and the vehicle was covered for both damages to the vehicle and any bodily injury to the driver.
NOTE: A vehicle needs to have full coverage to pay for property damage or loss.