Montana House Bill 187: replace guides with assistants? Not a good idea.

Montana HB187 creates unlicensed temporary guides called outfitter’s assistants to replace licensed guides who are injured or absent. These “emergency guides” could be a positive solution used by professional outfitters when 1) there’s a bonafide emergency, and 2) the clients of an outfitter and the public are protected. But, as written, the bill fails in both cases, and more. This is reposted from the FOAM blog. Read on.

Representatives of the Montana Outfitters and Guides Association (MOGA) and the Professional Wilderness Outfitters Association (PWOA) who drafted the bill talk and testify about only using OA’s in somewhat rare emergency situations, but nowhere in the bill is the term ‘emergency’ used or defined in order to justify replacing a guide with an outfitter’s assistant (OA). Without requiring proof of a definable “emergency,” the bill lets any outfitter replace any guide any number of times during a season with an OA for a limited time – up to 15 days – without having to declare or prove an emergency situation or pay for a guide license.

Who cares? We do, and so should the public, right along with Montana legislators. Some reasons why:

• The OA’s are unlicensed, so they dodge a mandatory background check for prior violations as a professional license holder or any criminal convictions in MT or elsewhere – a prerequisite for anyone seeking to be licensed for any profession in Montana. Without this check, even the well-intentioned outfitter may not really know the background of the person they’re putting in the field with clients.
• Licensed guides are required to have first aid training; unlicensed OA’s are not. Clients served by an OA may be at risk in a medical emergency, particularly in rough back country.
• Licensed Outfitters are held accountable for actions of their licensed guides. But, this bill does not hold a hiring outfitter accountable for an OA’s violation of any Board of Outfitters or FWP laws or rules while serving clients. We believe accountability encourages compliance and responsibility with regulations that safeguard the public served by licensees. Without accountability, public welfare is jeopardized.
• Montana outfitter license rules require an outfitter to get written permission from a client before changing their rates. We think the bill should have similar language for personnel changes, requiring the outfitter to tell the client when an OA replaces a licensed guide. It just makes sense to bring the client into the decision whether or not to continue the trip without a licensed guide. We believe full disclosure helps everyone work out a satisfactory solution to any true emergency.
• Since they’re not licensed, OA’s won’t have a valid guide license. The Board of Outfitters must somehow create a document for OA’s to carry in the field to replace that license as proof of compliance with this new law. We can’t think of a way to track on paper the fifteen-day limit for each OA, much less show which day of the 15 is current when an OA is checked in the field. Since no one knows when an emergency will happen, this document will have to be issued to all outfitters each year just in case it’s needed, and the circumstances of the replacement situation may not be known until the end of the license year. This documentation is intended to enforce compliance, but we just don’t see how that might work.
• With no licensing, there’s no fee to “create” or pay for administration of OA’s. The term “outfitter assistant” will have to be added to many board rules and even some Dept. of Fish, Wildlife & Parks rules. So, who’s going to pay for rules covering these new OA’s? All licensed outfitters and guides, one way or another. Simple rule-making can run as high as $1700 and up, not to mention the cost of administering whatever rules are eventually developed.
• Worse, without the various sideboards mentioned, some less ethical outfitters may well replace guides with no-cost OA’s, directly reducing the board’s income and requiring all licensees to pay more in fees to make up the difference. Our members don’t want to pay higher license fees to subsidize uncontrolled use of OA’s.
• FOAM has dealt with similar emergency guide replacement issues by simply licensing one or more guides to be used in other capacities in the field – think “freighters” who row the gear boats on the Smith river – or as standby help who may be available on short notice. Consider that our outfitters and guides are in the field for up to eight months statewide, starting fishing trips every day, and a survey of our outfitter members shows very infrequent need for an emergency replacement guide that could not be handled by having a spare guide or two available.

MOGA and PWOA representatives backing the bill claim this spare-replacement-guide technique will not work in their business model, even though there is evidence other MOGA members have used these auxiliary licensed guides in a variety of camp capacities or had them on standby for quick replacement.
The FOAM Board of Directors agreed to oppose HB187 for these and other reasons, including the fact that such uncontrolled, unsupervised, and unaccountable behavior may well lead to abuse that can tarnish or degrade the outfitting industry in the public’s eyes. Simply put, we believe public safety and honest dealings are more important than any outfitter’s business model.

FOAM is proud of it’s professional, responsible outfitter and guide members, and we see no reason for the legislature to pass a proposed law that, even with the best intentions, does nothing to account for, discourage, or punish abuse of public safety and welfare by even one outfitter falsely employing an outfitter assistant in a bogus emergency.

We’re not alone in this thinking. The Montana Board of Outfitters is responsible for protecting the public health, safety and welfare by qualifying outfitter and guide license applicants. With this charge in mind, the board met via a conference call on Tuesday, Feb 5, and voted 4 to 2 to oppose HB187 for many of the reasons we’ve stated: no mention or definition of emergency in the bill, the OA is not vetted for prior violations and has no first aid training, and the hiring licensed outfitter cannot be held responsible or disciplined for the unlicensed OA’s behavior, lack of first aid training, or violations of law and rule.
We believe the outfitter board would agree that, by and large, members of the outfitting and guiding industry are responsible professionals who run outstanding, quality operations. But, because the board members deal with disciplinary cases involving outfitters and guides, they are well aware that some licensees use questionable business practices that skirt or break the law.

FOAM has worked for years with our fellow hunting outfitters, and, like a family, when one of your brothers or sisters is headed down the wrong path, we owe it to them to try to set them straight. We have asked MOGA and PWOA representatives to amend this bill to address our concerns. So far, few changes have been made.

We also think this issue is important for the public, because, aside from all the internal administrative questions and costs, there’s still the issue of public safety. Would you want to be on a hunting trip out in the field with an OA with an unknown past who has no first aid training? Would you want a nonresident relative – or any nonresident visiting Montana for our quality hunting – to be with an OA? To us, the potential risk of a client guided by an unlicensed OA must be balanced with some degree of control and accountability. Unfortunately, HB187 does not set that balance.

If you’re a Montanan and you agree with us, go here, then click on “Senate Roster by Name” to find the Montana senator in your district and ask them to oppose passage of HB187 as written.