Chimney Swifts, Sweeps and the Law

By Paul Hempel

The Chimney Swift is a migratory bird species that nests in the chimneys of North America. Some chimney service professionals love them, some hate them, and others don’t care much either way. The Federal Government, however, has recently decided that they care very much how chimney sweeps handle the small birds – and whatever your past beliefs, it’s time to learn all that you can about the laws protecting the bird. In fact, you may want to establish a company policy on how you and your employees will handle these birds if your paths cross. Neglecting to do so could potentially cost you thousands of dollars!

Chimney Swifts (Chaetura Pelagica) spend winters feeding in the jungles of Peru in South America. In early to late spring they migrate north. Unable to perch or stand upright, they roost by clinging to vertical surfaces. Before European settlers arrived, the birds used hollow trees as nesting sites. As the Eastern woodlands disappeared swifts survived by nesting in chimneys, and thus began the relationship with the chimney sweep. They are found primarily east of the Rockies, though there have been reports of small colonies on the West Coast.

Why Swifts Are Protected

Since the chimney swifts winter in South America and migrate across international boundaries to their nesting grounds here in North America, they are protected by the Migratory Bird Treaty Act (MBTA) . The U.S. Fish and Wildlife Service (USFWS), a branch of the Federal Government’s Department of the Interior, is responsible for their protection.
Most sweeps are aware that there are laws protecting the birds, and many have heard of the Treaty, but sorting facts from fiction is no easy task. We will present you with the relevant parts of the Treaty and the Do’s and Don’ts of dealing with chimney swifts, as gathered from the USFWS and the U.S. Attorney’s Office involved with some Treaty violation cases last year.

In part, the Migratory Bird Treaty Act reads . . .

Sec. 703. Taking, killing or possessing migratory birds unlawful

“Unless and except as permitted by regulations made as hereinafter provided in this subchapter, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, posses, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, caused to be shipped, exported or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or eggs of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof, included in the terms of the conventions between the United States and Great Britain for the protection of migratory birds concluded August 16, 1916 (39 Stat. 1702), the United States and the United Mexican States for the protection of migratoy birds and game mammals concluded February 7, 1936. . . .”

Monitoring Chimney Sweeps

The chimney sweeping industry as a whole has recently been identified by the U.S. Fish and Wildlife Service, as a group that has been in frequent violation of the Federal laws concerning swifts and other birds protected under the MBTA. As a result, many wildlife rehabilitation groups, and wildlife rescue leagues are keeping them informed about offending sweep companies. In 1998, at least five companies were cited by the USFWS for violating the laws concerning the Treaty, after receiving complaints from wildlife rehabilitators and private citizens. Consider this a warning shot across our bow. We are now on the radar screen and they are out to change our attitude as an industry. If you value your bank account, it would be wise to take notice.

Treaty Violators

Neither Mary Holt, USFWS agent in-charge nor lawyers from the U.S. Attorney’s Office responsible for the recent chimney sweep/chimney swift violation cases were willing to give specific details of the settlements. They were however; willing to discuss the possible consequences to any sweep caught disturbing nesting swifts.

The rules are plain and simple. Don’t touch the birds, babies, eggs or an active nest. Don’t disturb them in any way when they are nesting or attempting to nest. To do so is a Federal offense and the fines are very stiff. Once the nestling are completely fledged, no longer using the chimney – then the chimney may be cleaned and capped, if the homeowner wants it. If you find a nest that has fallen of it’s own accord and the baby swifts are in danger, contact your regional USFWS office or a nearby wildlife rescue center.

Sec.707. Violations and Penalties; forfeitures

(a) Except as otherwise provided in this section, any person, association, partnership or corporation who shall violate any provisions of said conventions or of this subchapter, or who shall violate or fail to comply with any regulation made pursuit to this subchapter shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not more that $15,000 or be imprisoned not more than six months, or both.

(b) Whoever, in violation of this subchapter, shall knowingly –

Take by any manner whatsoever any migratory bird with intent to sell, offer to sell, barter or offer to barter such bird, or sell, offer for sale, barter or offer to barter, any migratory bird shall be guilty of a felony and shall be fined not more than $2,000 or imprisoned not more than two years, or both

(c) Whoever violates section 704 (b) (2) of this title shall be fined under title 18, imprisoned not more than 1 year, or both.

(d) All guns, traps, nets and other equipment, vessels, vehicles and other means of transportation used by any person when engaged in pursuing, hunting, taking, trapping, ensnaring, capturing, killing, or attempting to take, capture, or kill any migratory bird in violation of this subchapter with the intent to offer for sale, or sell, or offer for barter, or barter such bird in violation of this subchapter, shall be forfeited to the United States and may be seized and held pending the prosecution of any person arrested for violating this subchapter and upon conviction for such violation, such forfeiture shall be adjudicated as a penalty in addition to any other provided for violation of this subchapter. Such forfeited property shall be disposed of and accounted for by, and under the authority of, the Secretary of the Interior.

Fines Vary Region to Region

Most cases are prosecuted as misdemeanors, but don’t let that word give you the false idea that this is not a serious offense. The fines can vary from region to region, but as of this writing, as quoted from the Treaty above, in one of the Eastern USFWS regions the potential fine is $15,000 per count. And while the Treaty reads “shall be fined not more than $15,000,” I was assured that by USFWS that this means $15,000 per each egg, nestling, nest, bird, etc…with the usual clutch of 4 to 5 eggs, the fines could potentially mean the end of your business.

An Assistant U.S. Attorney in the Eastern District of Virginia believes that the law is written in a way that makes it possible to charge an offending company with a felony, which means there could be jail time and a possible forfeiture of equipment and vehicles used during the incident.

Please don’t misunderstand these people, they are friendly, open and helpful. And they also take their job of protecting the chimney swifts very seriously – and suggested that each one of us in the chimney service industry do the same.

So there it is in a nutshell. If you still have questions, visit the NCSG website at www.ncsg.org. There you will find more information on identifying chimney swifts along with photos of the birds, their nests and links to other articles. There are also links to other chimney swift informational sites, more on the Treaty with links to the full version, and information on building chimney swift towers as alternative nesting.

Paul Hempel owns and operates Brush & Brooms of Brighton, IL. He is also a Board Member of the National Chimney Sweep Guild.