Frequently Asked Questions
Here’s a list of common questions and answers about our licensing, business relationships, and our industry.
Under Montana’s Department of Labor and Industry, the Montana Board of Outfitters (MBO) is the professional licensing authority for outfitters and guides in the state. Currently, the MBO is comprised of a 7-member board (4 outfitter, 2 sportsmen, and 1 public members). Board members are appointed by the Governor. Members serve 3-year terms with no limit on the number of terms a member may serve.
Fishing outfitter applicants must have a minimum of three years and 120 days of verified experience as a licensed guide, guiding clients and using methods for pursuing fish, or equivalent experience as determined by the MBO. All other applicants must have 100 days of verified experience as a licensed guide, guiding clients in pursuing the types of game and using methods for which licensure is sought by the applicant, or equivalent experience as determined by the MBO.
The application fee to take the Outfitter’s Exam is $1800.00. All fees are non-refundable.
Outfitter license exam dates are scheduled through the MBO per applicant and proctored at a Montana Job Service Center of the applicant’s choice. Applications must be submitted to the MBO and experience requirements must be met before exams will be scheduled.
All outfitter application information, including links to application forms, are available here.
The requirements to become a guide in Montana include: you must be 18 years of age; you must be endorsed and recommended by an outfitter with a valid license, unless otherwise qualified under guide standards established by the MBO; you must submit proof of current basic first aid certification with your application; and, you must have been issued a valid wildlife conservation license.
The guide application requires a $150 fee.
All outfitter application information, including links to application forms, are available here.
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 of Labor & Industry to be illegal and ordered repealed.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 qualified 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 and 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.”
- 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 application, which includes the 15 point criteria list to qualify as an IC.
- Contact Montana’s Employment Relations Division, (406) 444-6543.
- 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 Registration Section, (406) 444-7734, for an application. The application is in three parts:
- 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.
- 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)
- A waiver form of workers’ compensation benefits that must be initialed at each paragraph, then signed in front of a notary.
Gather all the parts and documentation required, then send the whole bundle with the $125 fee to:
Montana Dept. of Labor and Industry
P.O. Box 8011
Helena MT 59604-8011
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? Contact the Registration Section at 406-444-7734.
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.
- Find an outfitter willing to ‘sponsor’ or recommend you as a guide.
- Get a guide license application from that outfitter or the board of outfitters.
- 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.
- NOTE: Allow two weeks for the Board of Outfitters to send your outfitter your guide license.
- Step 2: Obtain liability insurance.
- Join FOAM as a guide member. FOAM offers a group liability insurance policy. See the Membership page.
- Apply for liability insurance and obtain an certificate of insurance.
- NOTE: Our insuror strives to email your certificate of insurance within 2 business days.
- 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.
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 form (Optional), or contact the Montana Secretary of State’s office at (406) 444.2034. Complete the application online for a Domestic Limited Liability Company Articles of Organization. Annual reports can be completed and submitted online as well, due annually by March 15.
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.”
For guides, that’s not all however, there’s another section of rules – Unprofessional Conduct and Misconduct – that speaks to guides advertising as well. This section is worth pointing out as the entire section pertaining to guides – Section 2 – deals with advertising. Section 2 states:
“(2) Guides shall:
(a) not advertise services to the general public, but may advertise their services directly to outfitters;
(b) only make agreements with clients concerning monetary consideration or services offered, or collect fees from clients, with the express consent of the supervising outfitter, and only as expressly provided in ARM 24.171.405;
(c) not provide services to clients who have not been specifically referred to the guide from the endorsing outfitter; and
(d) not act as a guide under a guide license, unless and until the guide and the outfitter have first signed and dated the guide license.“
The MBO complaint process has several parts:
- 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.
- 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.
FOAM recently developed a newly-revised Acknowledgement of Risk & Release Form (May 2020). This revised form incorporates the acknowledgement of the contagious nature of COVID-19 and the participant voluntarily assumes the risk that they may be exposed to or infected by COVID-19 by attending the activity or trip. For the revised form, the language to create an assumption of the risk form and a release was combined, which gives you two ways to reduce a lawsuit under Montana law.
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.
An acknowledgment of risk is not the same as a waiver of or release from liability; 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. FOAM’s recently developed a newly-revised Acknowledgement of Risk & Release Form (May 2020) incorporates aspects of both types of forms.
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.
For commercial use of State Parks that allow fishing access, check out this reference sheet if you’re a fishing outfitter or guide, and a special commercial use reference sheet for ‘watercraft delivery’, aka, shuttle services. Apply for either commercial use license using a Special Use Permit Application.
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.
- Quote comparison #1:
- 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.
We list the most common questions we receive, but if you’ve got others, contact FOAM for straight answers.