Did Maryland's hunting guide license requirement apply to employees of guide services, not just self-employed guides?

Plain-English summary

Three members of the House of Delegates asked whether Maryland's commercial hunting guide license requirement applied only to self-employed guides and operators of guide services, or also to persons employed by guide services who personally accompanied hunters into the field. The Department of Natural Resources (DNR) had, in practice, only enforced the license requirement against self-employed guides and operators. The opinion concluded that both the statute, NR §10-309, and its implementing regulation applied broadly to everyone who guides hunters for compensation, whether self-employed, an employer, or an employee, because the statutory language was broad, the regulation expressly covered services furnished "personally, or by his agents or employees," and requiring a compliance oath from every licensee made the most sense if the oath reached the employees actually in the field. The opinion further concluded that DNR's past nonenforcement against employees did not amount to a binding administrative interpretation limiting the law's scope, since DNR had never formally adopted that narrower reading and had in fact told licensees in writing that employees needed licenses too, and that the doctrine of equitable estoppel could not be used to block the state from later enforcing a valid exercise of its police power.

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did Maryland's hunting guide license requirement apply to employees of guide services, not just self-employed guides?
According to this 1984 opinion, yes. The Attorney General concluded that both NR §10-309 and COMAR 08.03.01.27 required a commercial hunting guide license for everyone who assists hunters for compensation, including employees of guide services, not just self-employed guides and operators.

Did the Department of Natural Resources' past practice of not enforcing the license requirement against employees change the law's scope?
The opinion concluded it did not. DNR had never formally adopted a rule or interpretation exempting employee guides; its practice was described as mere inaction, and DNR itself had told license holders in writing that "you, as a Hunting Guide, and everyone employed by you to guide, must be licensed."

Could DNR be blocked from enforcing the license requirement against employees because it had not enforced it before?
The opinion concluded that equitable estoppel would not apply, because Maryland courts do not estop the state from enforcing a valid exercise of its police power based on past administrative inaction, and license holders were presumed to know the requirements of the law regardless of enforcement history.

Background and statutory framework

NR §10-309(a) required "a person desiring to be a commercial hunting guide" to obtain a license, and COMAR 08.03.01.27A defined "commercial hunting guide" broadly to include anyone who, directly or indirectly, receives compensation for furnishing hunting facilities and services, "whether or not the services are furnished by him personally, or by his agents or employees." The opinion applied Maryland case law on statutory construction and on the limited weight given to unpromulgated administrative practice, including the Court of Appeals' refusal in Comptroller of the Treasury v. John C. Louis Co. to defer to a longstanding but informal agency practice that conflicted with a statute's evident purpose, and concluded that neither DNR's past nonenforcement nor equitable estoppel principles could narrow the license requirement's plain scope.

Citations

Statutes:

• NR §10-309(a) of the Maryland Code (commercial hunting guide license requirement)
• NR §10-309(b) of the Maryland Code (DNR authority to regulate guide conduct and require a compliance oath)
• NR §10-309(c) of the Maryland Code (bars guides from aiding unlicensed hunters)
• COMAR 08.03.01.27A (definition of "commercial hunting guide," including services furnished by agents or employees)
• COMAR 08.03.01.27B (reiterates the licensing requirement)
• COMAR 08.03.01.27E (licensee's oath to help enforce game laws)
• Chapter 505, Laws of Maryland 1985 (later repealed and replaced NR §10-309 with "master hunting guide" licensing)

Cases:

• Curtis v. State, 284 Md. 132, 142 (1978) (statutes construed in light of their objectives and purposes)
• Comptroller of the Treasury v. John C. Louis Co., 285 Md. 527, 538 (1979) (weight of an administrative interpretation varies with the circumstances; unpromulgated practice entitled to little weight)
• State v. Berry, 287 Md. 491, 496 (1980) (cited on statutory construction principles)
• Bowles v. Seminole Rock Co., 325 U.S. 410, 413-14 (1945) (an agency's interpretation of its own regulation controls unless plainly erroneous or inconsistent with the regulation)
• Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566 (1980) (citing the Seminole Rock deference standard)
• Ewell v. State, 207 Md. 288, 296 (1955) (a clear and explicit statute cannot be nullified by custom or administrative practice)
• Salisbury Beauty Schools v. State Board of Cosmetologists, 268 Md. 32, 62-63 (1973) (equitable estoppel does not apply against the state in the exercise of its police power)
• Savonis v. Burke, 241 Md. 316, 319 (1966) (elements of equitable estoppel)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1984/Volume69_1984.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

LICENSING AND REGULATION

Natural Resources-Hunting-Commercial Hunting Guides-Licensing Requirements Apply To All Commercial Guides, Including Employees Of Guide Services.

September 18, 1984

The Honorable Michael H. Weir
The Honorable Anthony M. DiPietro, Jr.
The Honorable Joseph Bartenfelder
Maryland House of Delegates

You have requested our opinion on the interpretation of §10-309 of the Natural Resources Article of the Maryland Code and COMAR 08.03.01.27, both of which require commercial hunting guides to obtain licenses. Specifically, you have asked whether the license requirement applies only to self-employed hunting guides and operators of guide services or, in addition, extends to persons employed by hunting guide services to accompany hunters into the field.

For the reasons given below, we have concluded that the effect of the statute and regulation is to require all persons who assist hunters for compensation to have commercial hunting guide licenses, whether the guides are guide service operators, are self-employed, or are employed by guide services.

I
Introduction

Section 10-309(a) of the Natural Resources Article ("NR" Article) states: "A person desiring to be a commercial hunting guide shall first obtain a commercial hunting guide license." COMAR 08.03.01.27B reiterates that requirement by providing that "[e]very person desiring to act as a commercial hunting guide first shall obtain a commercial hunting license".

Although the statute does not itself define the term "commercial hunting guide", the regulation defines it as "a person who, directly or indirectly, receives any consideration for furnishing facilities and services in the hunting of wild game birds and animals, whether or not the services are furnished by him personally, or by his agents or employees". COMAR 08.03.01.27A.

To date, the Department of Natural Resources ("DNR") has actively enforced the license requirement only as applied to self-employed guides and operators of guide services. Nonetheless, as explained below, even DNR's own view of the meaning and scope of the statute and regulation has not been consistently so narrow. And, also as explained below, it is our view that both the statute and the regulation are better read as applying to all persons who guide hunters in the field, whether or not self-employed, as well as to operators of guide services.

II
The Governing Statute and Regulation

A. NR §10-309

Section 10-309 of the Natural Resources Article requires a commercial hunting guide license to be obtained by any person "desiring to be a commercial hunting guide". This broad language, together with other parts of the statute, strongly suggests an intent to require licensure of everyone engaged commercially as a hunting guide, whether as a self-employed guide, as an employee of a guide service, or as the operator of such a service.

For example, NR §10-309(a) authorizes the Department of Natural Resources to "establish classifications of licensees and set the fee to be paid by each class". That legislative grant of authority would, for example, permit DNR to distinguish among, and set different fees for, self-employed guides, employee guides, and guide supervisors, or, indeed, to distinguish among commercial hunting guides in any other way necessary for appropriate regulation of the business's various aspects. But the mere power to classify licensees is not tantamount to the power to totally exempt persons from licensure and regulation. And, in our view, the grant of authority here to classify licensees was simply intended to recognize that there may well be different kinds of "commercial hunting guides", as to whom differing fees and regulations might be appropriate, while still requiring that all of those guides obtain licenses and, in accordance with NR §10-309(b), be subject to regulation by DNR.1

Further, NR §10-309 appears to use the term "commercial hunting guide" in its broadest sense. Thus, for example, NR §10-309(c) prohibits commercial guides from "aid[ing] or accompany[ing] any person hunting any game bird or mammal unless the hunter possesses a proper hunter's license". Clearly, the purpose of this particular proscription is to aid in the enforcement of the licensing requirements for hunters; that purpose is best served by applying the proscription broadly, to cover not only the supervising guide who employs field guides but also to encompass the particular field guide who personally accompanies a hunter into the field.

We conclude, therefore, that the term "commercial hunting guide", as used in NR §10-309, is intended to include everyone whose business or employment is to assist hunters in their pursuit of game. See Curtis v. State, 284 Md. 132, 142 (1978) (statutes should be construed in light of their objectives and purposes). Accord, Comptroller of the Treasury v. John C. Louis Co., 285 Md. 527, 538 (1979); State v. Berry, 287 Md. 491, 496 (1980).2

B. COMAR 08.03.01.27

The express terms of the applicable administrative regulation are consistent with our interpretation of the statute. The regulation defines "commercial hunting guide" to include everyone who receives any consideration for assisting in the hunting of game, "whether or not the serices are furnished by him personally, or by his agents or employees". COMAR 08.03.01.27A. In our view, that definition is intended to include the guide service operator who provides hunting services indirectly through agents or employees, not to exclude the employee field guide who provides those same hunting services directly and personally. Put another way, we believe that the regulation's reference to any person "who, directly or indirectly, receives any compensation for furnishing facilities and services in the hunting of wild game birds and animals" includes both a guide whose compensation is paid directly by the hunters he or she assists, in the form of fees for services rendered, and the guide whose compensation is paid indirectly by hunters, in the form of a salary derived from fees paid by them to a guide service.

Similarly, as you have pointed out, the oath required of licensees under COMAR 08.03.01.27E also suggests that a license is required for everyone engaged in commercial guiding, including employee guides. The oath, adopted pursuant to NR §10-309(b), includes an affirmation that the licensee "will endeavor to prevent any party using my services from violating" State or federal game laws or regulations and will report any violation "in detail to the proper authorities". COMAR 08.03.01.27E. Thus, the commercial hunting guide regulations expressly enlist licensees' aid in enforcing game laws. Clearly, the employee guide who accompanies hunters into the field is in a far better position to give that aid than is a guide service operator who stays in the office. Indeed, exempting employee guides from the licensing requirement might well substantially undermine the efficacy of the licensees' oath as a means of preventing game law violations.

III
Prior Administrative Practice

A. General Principles

It might be argued that DNR's practice of refraining from enforcing the license requirement with respect to guide-employees of guide services is an administrative interpretation of the statute and regulation that limits their applicability. An administrative agency's practice often is given considerable weight in determining the proper construction of that agency's regulations and the statute under which they were adopted. Indeed, the Supreme Court has indicated that an agency's interpretation of its own regulation may be of "controlling weight" in construing the regulation "unless [the interpretation] is plainly erroneous or inconsistent with the regulation". Bowles v. Seminole Rock Co., 325 U.S. 410, 413-14 (1945), cited in Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566 (1980). Nevertheless, we do not believe that Maryland courts would show such deference in this instance to DNR's practice.

In Comptroller of the Treasury v. John C. Louis Co., 285 Md. 527 (1979), the Court of Appeals refused to adopt a long-standing practice of the State Comptroller as a valid interpretation of the Maryland Retail Sales Tax Act. Although the Court recognized that administrative interpretations in general, and the Comptroller's interpretation of tax statutes in particular, are entitled to great weight, the Court also noted that "an [administrative] interpretation is not binding upon the courts . . . Moreover, the weight accorded such an administrative interpretation or practice varies depending upon the circumstances." 285 Md. at 543 (citations omitted). According to the Court, the factors to be considered in determining the persuasiveness of an administrative practice include "the consistency of the administrative interpretation or practice with the purpose of the statute". 285 Md. at 544. In addition, "if an administrative interpretation has not resulted from a contested adversary proceeding, ... or from a promulgated administrative decision, rule, regulation, or departmental statement, it is entitled to little weight". Id. (Emphasis in original.)

B. Effect of DNR's Enforcement Practice

On the basis of the factors considered by the Court of Appeals in John C. Louis Co., we believe that DNR's past enforcement practice has not had the effect of limiting, by administrative interpretation, the actual applicability of the commercial hunting guide license requirement.

First, we believe that a regulation or an interpretation of a regulation that exempted employee guides from the licensing requirement would be inconsistent with the underlying statute, NR §10-309. As explained above, the statute's apparent intent is to apply the licensing requirement broadly; excluding employee guides from that requirement, however, would effectively exempt a rather large segment of all those who are actively engaged in the practice of guiding hunters. Consequently, in our view, the Department's practice of refraining from enforcing the license requirement as to guide-service employees would not be given much weight in determining the scope of the requirement.

Second, DNR has not "promulgated" any "decision, rule, regulation, or departmental statement" to the effect that hunting guides employed by guide services need not obtain licenses. To the contrary, in October of last year the Department noted in a memorandum to holders of commercial hunting guide licenses that, under "the law and regulation", "you, as a Hunting Guide, and everyone employed by you to guide, must be licensed as a Commercial Hunting Guide". Memorandum from B. Bess Crandall, Director of Licensing and Consumer Services, DNR (October 24, 1983). Subsequently, the Department explained that its notice was "our attempt to reconcile our practice with the terms of our regulation". Memorandum from Donald E. MacLauchlan, Director of Maryland Forest, Park and Wildlife Service, DNR (November 4, 1983). In that later memorandum, DNR reversed its decision to actively enforce the regulation against employee guides; but, quite clearly, DNR did not at all reverse its earlier statement regarding the regulation's meaning. Thus, far from having "promulgated" any formal exceptions for employee guides, DNR in fact has clearly stated the contrary: that the terms of its regulation, as well as the statute, require these guides to have licenses.

In sum, the Department of Natural Resources has never affirmatively interpreted its regulation to mean that employee guides need not have licenses; it has merely refrained from enforcing the license requirement with regard to them. Such a practice of mere inaction cannot vitiate the express terms of the regulation. Cf. Ewell v. State, 207 Md. 288, 296 (1955) ("[W]here the language of a statute is clear and explicit and susceptible of a sensible construction, it cannot be controlled or nullified by custom or administrative practice."). In our view, the language of COMAR 08.03.01.27 is clear and unambiguous. A commercial hunting guide is any "person who, directly or indirectly, receives consideration for furnishing [hunting] facilities and services . . . personally, or by his agents or employees"; and "[e]very person desiring to act as a commercial hunting guide" must obtain a license. Consequently, the regulation's meaning cannot be limited by an administrative practice that, even were it regarded as interpretive, would be "plainly ... inconsistent with the regulation". Bowles v. Seminole Rock Co., 325 U.S. 410, 413-14 (1945).

C. Equitable Estoppel

Nor do we believe that DNR's past practice of nonenforcement would operate to estop it now from enforcing the license requirement as applied to employee guides. For the doctrine of equitable estoppel to apply, "'the party claiming the benefit of the estoppel must have been misled to his injury and changed his position for the worse, having believed and relied on the representations of the party sought to be estopped'". Salisbury Beauty Schools v. State Board of Cosmetologists, 268 Md. 32, 62-63 (1973) (quoting, with added emphasis, Savonis v. Burke, 241 Md. 316, 319 (1966)). Moreover, courts will not apply the doctrine of estoppel against the State where, as here, the State is acting "in the performance of its governmental, public or sovereign capacity or in the enforcement of police measures". 268 Md. at 63-64.

In Salisbury Beauty Schools, the Court of Appeals refused to find that the State Board of Cosmetologists was estopped from enforcing, even after years of administrative inaction, a statutory prohibition against the charging of certain fees. Because the schools were presumed to know of the statute, the Court held, they could not "successfully contend that there has been 'any change in the position of the parties' as a result of inaction ... in enforcing compliance with the statute". 268 Md. at 67. Further, the Court held, such administrative inaction cannot in effect abrogate a statute validly enacted in furtherance of the police power. Id.

Clearly, the hunting guides license requirement is also a valid exercise of this State's police power. Therefore, in our view, estoppel cannot now operate to preclude full enforcement of that requirement, notwithstanding DNR's past practice of nonenforcement.

IV
Conclusion

In summary, it is our opinion that the commercial hunting guide license requirement of NR §10-309 and COMAR 08.03.01.27 applies to self-employed guides, guide service operators, and guides employed by guide services. In light of the language and purposes of the statute and regulation, we believe that the intent of the General Assembly and the Department of Natural Resources was to require all persons engaged in providing hunting-guide services for compensation to obtain licenses.

Stephen H. Sachs, Attorney General

Avery Aisenstark
Chief Counsel,
Opinions and Advice

Editor's Note: In Chapter 505, Laws of Maryland 1985, the General Assembly repealed the provision discussed in this Opinion and enacted in its stead a new NR §10-309, containing detailed requirements for the licensing of "master hunting guides".

1 NR §10-309(b) broadly authorizes DNR to "prescribe rules and regulations governing the duties of guides and requiring an oath that a licensee shall abide by the wildlife laws of the State".

2 In its last legislative session, the General Assembly considered House Bill 268, intended in part to more clearly require licensing of employee guides. The bill was not enacted.

Arguably, that bill's failure might be regarded as legislative affirmance of DNR's practice, indicating an intent to limit the scope of the statute. We do not believe, however, that such an argument would be effective in this instance, for House Bill 268 would have made a number of changes in NR §10-309 beyond the licensing requirement. For example, the bill would have substantially increased the fee for a hunting guide's license, imposed a site-registration fee on operators of guide services, codified and somewhat enlarged the present recordkeeping requirement in the regulations, and required annual reports on hunting activities from all licensees. Moreover, as drafted, the bill apparently would have covered all employees of guide services, including not only employee guides but even, for that matter, office personnel such as clerks and secretaries. Thus, the bill's failure cannot confidently be attributed to a legislative intent that employee guides not be licensed.